CLANEM IDDLETON

.THOMAS B. GETZ

Direct Dial; 603.230.4403Email : thornas.getz@mclane.com

Admitted in NHI I South Main Street, Suite 500

Concord, NH 0330 IT 603.226.0400F 603.230.4448

February 28,2018

Víø Electroníc Maìl & Hand Delíverv

Pamela Monroe, AdministratorNew Hampshire Site Evaluation Committee2l South Fruit Street, Suite 10Concord, NH 03301-2429

Re Site Evaluation Committee Docket No.2015-06Joint Application of Northern Pass Transmission LLC and Public Service Companyof New Hampshire dlb/a Eversource Energy (the "Applicants") for a Certificate ofSite and FacitityMotion for Rehearing and Request to Vacate Decision

Dear Ms. Monroe:

Enclosed for filing in the above-captioned docket, please find an original and one copy of aMotion for Rehearing and Request to Vacate Decision of February I,2018 and to ResumeIncomplete Deliberations.

Please contact me should you have any questions or concerns.

Thomas B. Getz

TBG:slb

cc: SEC Distribution List

Enclosure

Mclane Middleton, Professional AssociationManchester, Concord, Portsmouth, NH I Woburn, Boston, MA

McL¿rne.con.r

STATE OF NEW HAMPSHIRESITE EVALUATION COMMITTEE

SEC DOCKET NO. 2015.06

JOINT APPLICATION OF NORTHERN PASS TRANSMISSION LLC &PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE

DIBI A EVERSOURCE ENERGYFOR A CERTIFICATE OF SITE AI\D FACILITY

MOTION FOR REHEARING AND REOUEST TO VACATE DECISION OFF'E,RRIIARY 1.2018 AND TO RES INCOMPLETE DELIBERATIONS

Northem Pass Transmission LLC ("NPT") and Public Service Company of New

Hampshire d/b/a Eversource Energy ("PSNH") (collectively the "Applicants"), file this Motion

for Rehearing pursuant to RSA 541:3. The Applicants seek rehearing on the February l, 2018

decision of the Site Evaluation Committee ("SEC") to end deliberations regarding the above-

referenced Application.l More specifically, the Applicants request that the Subcommittee vacate

the decision to deny the Application and resume deliberations.2

I. Introduction

The Applicants recognize and appreciate the significant time and effort the members of

the Subcommittee devoted over the past two years to reviewing the largest project ever to come

before the SEC. Assimilating all the relevant information in this enorTnous record is a substantial

challenge. One purpose of this motion is to sharpen the focus on how certain mitigation

elements, based on evidence already in the record, would materially address concerns expressed

by the Subcommittee during deliberations regarding the Project's potential impacts on tourism,

property values and land use, as well as other issues that may arise pertaining to the other siting

I Throughout this pleading, the Subcommittee of the SEC will be referred to as the "SEC "or the "subcommittee."2 The decision to deny the Application includes the finding that the Applicants failed to meet their burden of proofto demonstrate that the Project will not unduly interfere with the orderly development of the region.

criteria. For example, Counsel for the Public ("CFP") proposed a set of conditions in his post-

hearing brief. Since the Subcommittee's decision, the Applicants have agreed to accept all

CFP's proposed conditions with some modifications agreed upon by CFP. ,Seø Attachment A.

In addition, the Applicants have accepted conditions imposed by state agencies such as the

Department of Environmental Services, the Department of Transportation, the Public Utilities

Commission and the Division of Historic Resources. Finally, the Applicants have provided

examples of additional conditions the Subcommiffee could impose, based on the existing record,

to address the specific concerns that were raised during deliberations, as well as others that could

be raised during deliberations on the remaining statutory criteria. See Attachrnent 8.3

Specifically, several sample conditions would directly earmark funding from the $200

million Forward New Hampshire Fund ("Forward NH Fund") to address issues such as tourism,

and would include directions as to how funds would be administered and distributed to ensure

transparency and accountability. Other examples include an expansion of the Applicants'

Property Value Guaranty ("PVG") and the retention of an independent third-party to administer

the PVG, as well as any claims associated with property damage or business intemrption that

may arise during or after construction. The Applicants have also illustrated how the

Subcommittee could rely on the existing record to impose a condition requiring an alternative

construction method in locations like Plyrnouth and Franconia that would substantially reduce

business impacts in those locations.4

3 CFP har not taken any position with respect to the additional conditions identified by the Applicants inAttachment B. Furthermore, to be clear, the Applicants are not seeking to reopen the record but are including theseconditions as examples of what the Subcommittee could do, and could have done, based on what is already in therecord and the powers it has under the statute and regulations.4 In addition, Attachment C is a composite, arranged according to the required statutory findings pursuant to RSA162-H:|6,IV, which includes the conditions agreed to by the Applicants and CFP, the conditions proposed by theApplicants in their brief, conditions proposed by certain intervenors that were accepted by the Applicants in theirbrief, and additional conditions that the Subcommittee could impose based on the record.

2

It was noted several times during deliberations that the Subcommittee believed the

Applicants would be receptive to expanding proposed mitigation measures. That is correct: the

Subcommittee can, consistent with prior SEC cases, use its statutory authority to craft conditions

that would mitigate impacts of concem. In fact, the Forward NH Fund, with its explicit focus on

tourism, economic development, and community betterment, and clean energy innovation was

designed specifically for that purpose.

As part of their case, the Applicants specifically contemplated conditions, including

mitigation measures, that address elements of the "undue interference" finding (e.g. property

values and tourism). For example, the Applicants proposed a gaaranty program to address

potential impacts on property values and indicated their expectation that the program could be

expanded as deemed appropriate by the SEC.5 Similar mechanisms were also proposed to

address business impacts and intemrption as well as property damage.

The Applicants understand that the Subcommittee may have eventually found that any or

all such proposals required modification, but the Subcommittee should thoroughly consider the

beneficial effects of conditions when ultimatelymaking its finding. As discussed below, the

Subcommittee has the authority to tailor conditions that expanded upon, revised or otherwise

5 Early in the hearings, Day 2, PM (April 14,2Ol7) at p. 85, Chairman Honigberg asked Mr. Quinlan about theproperty value guarantee and other commitments and conditions. Specifically, Chairman Honigberg asked:

Q. To the extent that, as it currently exists, like the work-in-progress Guarantee Program, lhatmay need somerefinement before it can be rolled out and implemented. Would you agree?A. Yes, if you're referring to the property value.

Q. That's the one.A. Again, right now it's a concept. I think we have the framework of a program, to the earlier question, thatprobably could use some further development before it's ready for execution, if you will.Q. And since we're not going to be done here tomorrow, there's time even through these proceedings and thenthrough deliberations to work through how that might get improved or how other commitments might be rehnedand make their way into conditions. Vy'ould you agree with that?A. Yes.

Citations to the record will be to the day of deliberation, am or pm session and the page and line numbers of thetranscript, which is attached to this motion. See e.g.,3PM2316. The purpose of citing to the transcript of thehearings in this motion is not (at this point) to address the merits of the Subcommittee's decision but rather, todemonstrate that evidence concerning conditions was, in fact, available to the Subcommittee when it ended itsdeliberations.

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improved those proposals, based on the existing record, in a manner that addressed concerns

raised by members of the Subcommittee during deliberations. In an effort to illustrate this

opportunity, Attachment B sets forth a comprehensive set of conditions that the Subcommittee

could consider to resolve specific concerns identified during deliberations as causing an undue

interference with the orderly development of the region or that may arise during deliberation of

other statutory criteria. Finally, Attachment C provides the framework for a solution, linking the

conditions identified in Attachments A and B to the statutory criteria the Subcommittee must

consider in rendering a decision.

II. Summary of Legal Basis for Rehearing

1. After 70 days of hearings over a period of eight months, with the record

closing two years and four days after the Application had been accepted, the decision to end

deliberations two and one-half days into a scheduled twelve days was contrary to the statute and

rules governing the SEC. Whatever decision the Subcommittee might eventually reach, that

decision must be made after due consideration of all relevant information and a full consideration

of all the required findings, including an analysis of conditions that might resolve any of the

Subcommittee's concerns. RSA Chapter I62-H requires due consideration of all relevant

information precisely because the deliberations concerning each finding may well inform the

others. With respect, if the Subcommittee properly applied all the criteria, considered the

imposition of conditions -- particularly those imposed by DOI DES, DHR and the PUC, and

those proposed by CFP, and revised and amended by agreement with the Applicants, or proposed

by the Applicants -- and deliberated on all the findings, it should reach a different decision.

2. The consideration of mitigating conditions is an integral element of the

burden of proof and the Subcommittee's failure to even address potential conditions is contrary

4

to RSA 162-H and the SEC regulations. The Applicants applied for a Certificate as part of a

permitting process. Unlike atnal, in which a court does not have the ability to issue conditional

orders, the accepted method-in this State and elsewhere---of evaluating and issuing permits

commonly includes conditions to mitigate or eliminate potential findings of undue interference

or unreasonable adverse impact. The consideration and imposition of such conditions is thus an

integral part of the evaluation of applications before the SEC. In fact, as discussed below, the

SEC has commonly imposed such conditions in determining whether to issue a Certificate and,

as importantly, in evaluating whether an applicant has met its burden of proof. Put simply, the

failure of the Subcommittee to address potential conditions is contrary to RSA 162-H, applicable

SEC regulations and denied Applicants a fair opportunity to meet their burden.

3. Under RSA 162-H:11, proceedings of the SEC are subject to review under

RSA Chapter 541. Although there is no written order in this matter, RSA 541:3 provides that

"any party to the action or proceeding" may apply for rehearing "[w]ithin 30 days after any order

or decisíon has been made." (Emphasis added.) The decision to end deliberations and the

decisions that flowed from it, are subject to RSA 541:3. Under the law and the relevant facts, the

Applicants are not required to wait until a written order is issued to move for reconsideration of

the Subcommittee's decision, particularly in the circumstances of this case, where the decision to

end the deliberations is a plain error of law that can, and should, be remedied now, and that a

written order cannot resolve.6

4. The purpose of rehearing "is to direct attention to matters that have been

overlooked or mistakenly conceived in the original decision . . ." Dr¿maís v. State,118 N.H. 309,

311 (1978) (internal quotations omitted). A rehearing may be granted when the Committee finds

6 the Applicants preserve their right to challenge the merits of the Subcommittee's final written order pursuant toRSA 541:3 upon the issuance ofsuch an order.

5

"good reason" or "good causefr has been demonstrated. See O'Loughlin v. NH Pers. Comm.,lI7

N.H. 999, 1004 (1977); Appeal of Gas Service, Inc., l2I N.H. 797, 801 (1981).

5. The SEC's decision constitutes a plain error of law for several reasons.

First, by cutting offdeliberations after two and one-half days, the Subcommittee violated RSA

162-H:|6,IV (Supp. 2017), and its own regulations.T The statute and regulations require the

Subcommittee to apply all of the criteria set out in the rules and to make each finding set out in

the statute before granting or denying an application.

6. Second, by cutting offdeliberations, the Subcommittee failed to assess

conditions that could be imposed to alleviate any concerns about potential interference with the

orderly development of the region ("ODR"). The statute and regulations also require that such

conditions be considered. Moreover, such conditions have been an integral component of SEC

decision-making in all prior dockets.

7. Third, the Subcommittee's conclusion that the Applicants had failed to

meet their burden of proof regarding undue interference with ODR did not apply the required

standard set out in the statute and regulations. The fragmented deliberations that did occur show

that the Subcommittee erroneously believed that unless the Applicants demonstrated that there

was no impact on ODR for each underlying component of the criteria set forth in Site 301.15,

they had failed to meet their burden. By requiring the Applicants to prove "no impact" at all, as

opposed to an overall showing of no "undue interference," the Subcommittee imposed a burden

of proof that is both contrary to the statute and regulations, and impossible to meet.8

7 All references to RSA Chapter 162-H are to the 2017 Supplement.8 The Legislature unequivocally recogni zed, lhatthe construction of energy facilities would likely have negativeeffects and that those effects were not, by themselves, sufficient reason to deny a Certificate. RSA 162-H: L In lightofthat fact, the Legislature created standards that allowed for such effects so long as, in this case, interference withODR was not "undus." RSA 162-H:16, IV(b). Likewise, the Legislature recognized in other parts of the statute that

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8. The Subcommittee's failure to deliberate fully, and its utilization of an

improper standard, amounts to a denial of due process. The Applicants were entitled to a

consideration of their entire Application. Furthermore, the Subcommittee's discussions

demonstrate that it either failed to define the otndue interference" standard, or applied the

regulation in an ad hoc marrrter that was so vague that no applicant would know whether it had

met the burden of proof, or understand how it ever could.

9. In sum, the SEC simply failed to complete the process that the law

requires. As a result, the Applicants have been subjected to an unfair process and an unjust

result. For all these reasons, the Applicants request that the Subcommittee vacate its decision to

deny the Application and resume deliberations.

III. The SEC's Failure to Complete Deliberations Violates RSA Chapter 162-IJand Its Own Regulations

10. The Subcommittee's decision to end deliberations was unlawful, unjust or

unreasonable, and an error of law contrary to the statute and regulations that govern the SEC.

The decision is so arbitrary and capricious as to constitute a denial of due process.

A. By Ending the Deliberations, the Subcommittee Failed to EvenConsider Mitigating Conditions That Might Have Resulted in aDifferent Finding on Undue Interference or Other StatutoryFindings

1 1. As discussed above, Site 202.28 (a) and Site 301.17 require that the

Subcommittee consider whether the imposition of conditions could have addressed issues

associated with each of the statutory findings including ODR. This is not a hypothetical

exercise. In the past thirty years, the SEC has issued at least thirteen certificates. In doing so,

while there may be adverse effects, such effects must rise to the level of being unreasonable to deny a Certificate.RSA 162-H:l6,IV(c).

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the SEC has imposed over 300 conditions.9 In fact, over time, the trend has been for the SEC to

increase the number of these conditions.l0 Often, these conditions were imposed specifically to

ensure that there was not "undue interference" or an "uffeasonable adverse impact." Indeed,

previous certificates address the issue of "undue interference" by stating as follows:

WHEREAS, the Subcommittee finds tha! subject to the conditíonsherein, the Project will not unduly interfere with the orderlydevelopment of the region, with due consideration having beengiven to the views of municipal and regional planningcommissions and municipal governing bodies...l I

(Emphasis added.)

12. One reason given to end deliberations was that the Subcommittee would

"really need to figure out what conditions we would impose on a lot of things," an issue o'that's

not going to be simple and. ..fast,"l2 and would provide "alotmore things to appeal." 3PM

8112-18. This point-standing alone-is a suffrcient and compelling reason to resume

deliberations. The Applicants fully appreciate the complexity of this process and the time that

the Subcommittee members have dedicated to it. Yet it is readily apparent that the imposition of

9 Th"r" Committee-level conditions were imposed in addition to the many hundreds, if not thousands of conditionsthat were imposed by the SEC's constituent agencies.l0 A review of prior SEC decisions and orders demonstrates that the SEC has become more involved in the craftingof conditions over time. For example, the 1985 Hydro Quebec Phase II Certificate contained approximately 9conditions imposed by the SEC in addition to those imposed by other state agencies, whereas the 2009 GraniteReliable Certificate contained approximately 26 such conditions, and the 2016 Antrim Wind Certificate includedapproximately 80 such conditions.ll 5"" Order and Certifìcate of Site and Facility With Conditions, Docket No. 2015-05 (October 4,2016),p.2; seeqlso Order and Certificate of Site and Facility V/ith Conditions, Docket No. 2015-02 (March 17,2017), p.2; OrderandCertificate of Site andFacilityWithConditions, DocketNo.2014-02 (August 29,2014),p.2.12 Again,contrast this statement with another statement of Chairman Ignatius inAntriml: "We move now to thequestion of aesthetics that we've already discussed and taken a vote that we find, from visual impact, there to be anundue adverse effect on aesthetics within the community. But we didn't talk about whether that's an impact that has asolution to it, in terms of conditions or mitigated steps. And so I want us to go back and work through that again andhear people's views. What is it that you find that makes it an undue adverse effect, and is it something that, forexample, given your finding, you could resolve through a condition? And it may be different people have differentreasons for finding it to be an adverse effect and, therefore, would have different solutions available to them. So thismay take ct little while to go through, but I think it's really important that we do this carefully and as thoroughly aswe cen." (Emphasis supplied.) Day 3, PM, pp. 6-7 (February 7,2013).

8

conditions might have resolved particular ODR concerns.l3 In turn, and most critically, such a

discussion may have caused members to change their minds: if conditions on a specific criterion

satisfied the concerns of a member on that criterion, it may have altered that member's overall

conclusion about ODR.

13. Likewise, the consideration or imposition of conditions might have

satisfied some of the Subcommittee members' concerns about whether the Applicants had

satisfied their burden of proof. As the Chairman so aptly stated: "And until a vote is taken,

everything is open for discussion." 3AM 3313. But by discontinuing deliberations and not

considering conditions, "everything" was not "open for discussion" (including, as discussed

herein and below, some very workable and effective mitigating conditions).

1. Property Value

14. One component of the economy criterion of the ODR finding, about which

members of the Subcommittee expressed concerns in their deliberations, was property values. It

therefore stands to reason that imposition of an expanded property value guaranty might have

addressed that concern. Ms. Weathersby proposed discussing the Applicants' guaranty proposal,

which was intended to address concerns about the impact of the Project on property values,14 but

Chairman Honigberg moved on to a discussion of taxes and the Subcommittee never returned to

the property value guaranty.

15. The consideration of such a guaranty was especially relevant where, as

here, the Applicants offered such a program.l5 Even Counsel for the Public's ("CFP")

13 See Section III. A. 1-4 for examples of members mentioning conditions as apparent means to address concernsabout orderly development criteria; conditions that received no consideration in the Subcommittee's final analysis.14 "I think another point that we probably should discuss was the property value guarantee, the price guarantee thatwas offered by Northern Pass. Is this a good time to do that?" zPN.4 6115.15 In hir Supplemental Testimony, Mr. Quinlan described the Property Value Guaranty Program that is "designed toensure that that owners of those properties identified as most likely to see property value impacts do not incur an

9

economics witness, Mr. Kavet, believed this issue could be addressed: he testified that the

Forward NH Fund "would be more than adequate to compensate affected parties" regarding

property value effects. Tr. Day 45, Afternoon Session (November ll,2017) at 67. He also

noted atthat time that the Forward NH Fund was o'a substantial amount of money that could be

directed in different ways." Id.

16. Chairman Honigberg also observed with respect to the property value

guaranty: "That was criticized as inadequate by a number of people. But I think it's fair to say

that that proposal is a proposal and the Company would be open to revisions or expansions if the

Subcommittee felt it was important to do so." 21tl|l4 at ll0 see ø/so Footnote 5. For example, if

the Subcommittee wished to expand the Property Value Guaranty Program to cover more

homeowners, including those adjacent to ancillary facilities, it could have done so.16

2. Tourism

17. Tourism impacts were also a concern to members of the Subcommittee.

For example, Mr. Way observed "I don't think this is going to have the impact they say or that

some would say, but it is going to have an impact for some. I just don't know exactly where." 2

PM 86-87. Other members generally concurred (Id. at 88-93), although Mr. Oldenburg stated a

different position: "I don't think the construction will unduly interfere with the orderly

development of the region. So, all in all, I would -- I'd say there's certain points that they

definitely missed. But the point I discussed most was construction, and I don't see that as a

economic loss in the event of a sale within 5 years after construction begins." William Quinlan Supplemental Pre-Filed Testimony, App. Ex. 6, p. 9.16 Attachment B contains such an expansion of the Property Value Guaranty Program. As revised, the ProperfyValue Guaranty Program goes well beyond the category of properties identihed through the work of Dr. Chalmers,and would cover all homes located within 200 feet of the edge of the Project right-of-way. The Applicants firmlybelieve Dr. Chalmers' conclusion that the Project will only have a limited impact, but nonetheless provide thisexample of how the Program could be expanded. Importantly, had the Subcommittee considered and decided toimpose such a condition, it would have eliminated the property value issue as a concern as part of its deliberation onthe ODR criterion.

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negative." 3 AM at20. The Subcommittee, however, never discussed conditions regarding this

topic, although the Chairman made the following observation:

But I think if planned properly and with the kind of outreach thatyou were talking about earlier, Mr. 'Way, construction disruptioncan be dealt with. Construction is unpleasant to have near you,around you, in front of you but can be dealt with if it's planned andorganized.I just don't see from Mr. Nichols or any other sourcefrom the Applicant any analysis of what might happen. On theother side, the opposition who don't have the burden of proof, itwas opinions, speculation about what would happen.

2Pltl at92.17 This is aî ateathat could easily have been resolved by conditions as demonstrated

in the record that the Subcommittee was required to consider.ls

18. Also missing from the Subcommittee's analysis of this issue during the

deliberations was consideration of the Applicants' proposed $200 million Forward NH Fund,

which expressly focuses on tourism and economic development.19 As with property values, the

economics witness for the CFP also offered testimony that tourism impacts would be minimal.

Specifically, Mr. Kavet testified that the potential impact to tourism would be a "teeny tiny

percentage," that is a "15 hundredths of one percent. 000.15 percent change in tourism activity in

17 But see, Site 202.19 (a) which provides that any party "asserting a proposition shall bear the burden of provingthepropositionbyapreponderanceoftheevidence." Thus,opponentsdohaveaburdenofproofandtheirassertions, comments and views should be considered and weighed with that burden in mind.18 Attachment B includes a sample condition that could have addressed concerns over possible tourism impacts. Inaddition to conditions requiring the development of business coordination and outreach plans for the SEC's reviewand approval prior to commencing construction, another sample condition would dedicate $25 million of theForward NH Fund (almost four times New Hampshire's total annual tourism budget based on the budget for thelatest completed fiscal year) to promoting tourism and recreation in the region, and requiring the Forward NH Fundto work with state tourism leaders to identifr, design and fund programs that will promote tourism and recreation inaffected areas. Had the Subcommittee considered and imposed such a condition, it could very well have concludedthat any potential impact to tourism the Project might cause could be avoided, minimized or adequately mitigatedand would not present any concern with respect to ODR.l9 Si-ilat to Ms. Weathersby's statement on properly values, Mr. Way said that the Forward NH Fund was onething the Subcommittee might want to ølk about but did not return Io.2Pl:[l32.

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the affected aÍeas."2o Hearing Tr. Day 45PM l7-18. His opinion reinforces the conclusion that

mitigation of such impacts through resources from the Forward NH Fund is easily achievable.

19. Given this record, the Subcommittee was required to consider any number

of approaches to address its concerns. Based on evidence in the record, the SEC could have

imposed conditions such as those set forth inAttachment B (all of whichApplicant is fully

prepared to accept) as well as any number of other conditions that could be imposed that would

be fully supported by the record in this case. See Attachment B.

3. Business and Employment Effects

20. Certain Subcommittee members expressed concern about the impacts of

construction on business including potential employment impacts and business disruption. This

is another area where the concerns of Subcommittee members could be addressed through

conditions.

21. As for the impacts of construction on businesses, the record shows that

CFP's economics witness, Mr. Kavet, also believed this issue to be manageable: he testified, in

response to questioning by Mr. Way that the business claims process and the Forward NH Fund

would be more than adequate to compensate for any business losses. Hearing Tr. Day 45,65-67.

Likewise, the Chair appeared to believe conditions could address this issue: "I would be willing

to bet that if we granted a Certificate and put in a condition or insisted on an improved and

beefed-up claims process for business losses that would be a fairly easy thing to develop." 2P}lI

51. Moreover, during deliberations, Mr. Way appeared to express interest in discussing how the

Forward NH Fund and the North Country Jobs Creation Fund might affect this issue.2l

20 Notubly, the Department of Energy also examined potential tourism impacts in its Final Environmental ImpactStatement and found them to beoonot quantifiable." FEIS, p. S-24.2l "On" thing we might want to talk about, too, is the Forward NH Fund and the Jobs Creation Fund, although inmy mind whatever we come up with...they're separate entities. They're separat€ business structures. And so we

t2

22. The Applicants recognizedthat there might be business impacts and

specifically proposed measures such as the business loss policy and claims process to address

those concerns. At least some Subcommittee members seemed to recognize that such proposals

would be effective, or at least be a good starting point.2z To the extent the Subcommittee wanted

to broaden, modify, or otherwise improve such protections, it certainly could have crafted

conditions to accomplish that goal. For example, it could have ordered the expansion of both of

these proposed programs. The Subcommittee could have created mechanisms for third-party

oversight, including oversight from one or more State agencies. It could have ordered the

Applicants to place money in escrow prior to commencing construction so that funds would be

immediately available. Likewise, it could have ordered that additional resources from the

Forward NH Fund be explicitly dedicated to addressing business impacts.23

23. The Applicants recognize that the Subcommittee's obligation to consider

these conditions does not mean that it would have imposed them. But the statute and regulations

require a deliberation over whether conditions could have made a difference.

4. Land Use

24. The Subcommittee devoted a substantial portion of its deliberations over

the ODR finding to a discussion of land use. 2AM 6-74. As shown in Part IV the Subcommittee

addressed the issue without defining the "region," or defining the land use in terms of "undue

really don't have a lot of, there's limited amount of jurisdiction we have to impact how they do their business . . . So Idon't know during this process if we have the ability to offer nonbinding suggestions . . . or recommendation that wecould make we could include them in the certificate?" Mr. Iacopino responded yes, they could. 2PM 32-34.22 Mt. Wright, as part of his summation, mentioned it saying that "I think there will be some business losses. Ithink some of that could be recovered by the business compensation plan that the Company's offered up." 3AM 22.23 Attachment B includes an example of such a condition. In addition to providing a business claims process

administered by a third party with $500,000 of initial funding, as suggested by Counsel for the Public, anothersample condition could dedicate $25 million of the Forward NH Fund to addressing localized potential impacts thatconstruction of the Project may cause by funding economic development initiatives in certain host communitiesaffected by the construction. Had the Subcommittee considered and imposed such a condition, it could very wellhave concluded that impacts to business would be adequately mitigated by such a program and that such impactswould not rise to the level of undue interference with the orderly development of the region.

13

interference." MoreoveE the Subcommittee members described the alleged failure by the

Applicants to meet their burden of proof not with respect to undue interference or, for that

matter, any interference at all. One member appears to have evaluated the land use criterion

regarding zoning issues, and in particular, with whether construction of the new line within an

existing right of way should be evaluated as a "non-conforming use," proceeding from the

misconception that the existing use of the right-of-way for transmission is non-conforming and

"the use of the corridor for the Northern Pass Transmission Project, becomes a different use in

some places." 3AM lTll;2lll9. Taking up on this formulation, other Subcommittee members

also expressed concern that the construction of another line in the right-of-way would be a

"tipping point," in which the Project became a "different use." The evaluation of zoning criteria

is not the standard required by the statute or rules.24 Further compounding that problem, the

Subcommittee as a whole did not identify the specific areas of concern with respect to this

alleged "tipping point."

25. The law of non-conforming uses is purely a matter of local zoning. It is

designed to protect and allow specific uses of property that predated zoningordinances and limit

the expansions of such uses so that eventually, non-conforming uses cease. "The burden of

establishing that the use in question is fundamentally the same use and not a new and

impermissible one is on the party asserting it. This is in accordance with the general policy of

zoning to carefully limit the extension and enlargement of nonconforming uses." New London v.

Leskiewicz, 110 N.H. 462, 461 (1970). The Leskíewicz ct'rtena focus on whether a use is

24 Whil" the SEC rules require consideration of local zoning ordinances, nowhere do the rules direct the SEC toconsider zorungprinciples like non-conforming uses and variances. They are unique to municipal land use boards.Moreover, while Subcommittee members identified the section of the new ROW outside of the Wagner Forest areaas a concern, no consideration was given to the fact that towns in that part of the route do not having any zoningordinances. Furthermore, in discussing the Wagner Forest, Director Wright and Commissioner Bailey recognizedthat the owners had made a conscious decision prefening overhead construction, a rationale that is equallyapplicable to the eight miles of nearby overhead construction on land acquired by the Project.Day 2, AM, pp. 68-69

T4

o'fundamentally the same" and whether it has a "substantially different effect on the

neighborhood." The case also establishes a policy bias of oocarefully limiting" the expansion of a

non-conforming use. These principles have no bearing on undue interference with orderly

development of the region in the context of certificate issuance under RSA 162-H. They reduce

the scope of the analysis to purely local impact, ignoring the required "regional" focus of the

statutory criteria. They also actively work to limit the scope of non-conforming uses and

encourage their extinction. Surely, RSA 162-H does not exist to limit the scope of energy facility

siting or encourage its extinction. The two concepts are legal apples and oranges. To apply local

zoninglaw to judging regional impact is to consider irrelevant principles and ignore the plain

meaning of the statute.

26. Moreover, the Subcommittee's discussion of a "tipping point" (allegedly

the point at which the Project should be evaluated as a non-conforming use) stands in stark

contrast to the Subcommittee's determinations with respect to land use in the Merrimack Valley

Reliability Project ("MVRP") proceeding. Specifically, in finding that the project would not

unduly interfere with the orderly development of the region, the Subcommittee stated, agreeing

with theApplicants'witness Robert Varney, that "fc]onstruction of the Project within an already

existing and used right-oÊway is consistent with the orderly development of the region."25

Decision and Order Granting Applícation for Certificate of Síte and Facilíty, Docket No. 201 5-

05 (October 4,2016), p. 58.

25 th" facts and evidence the Subcommittee relied on in MVRP are substantially similar to the facts and evidencesubmitted here. First, like Northern Pass, in MVRP "land used along the right-of-way includes forest, agriculture,residential, commerciaVindustrial, transportation, institutionaVgovernment, recreation areas, conseryation, historical,and natural features." Decision and Order Grønting Applicationfor Certificate of Site and Facili4l, Docket No.2015-05(October4,20l6),p.50. TheheightsofthestructuresinMVRPwereapproximately40to50feettallerthan the nearest existing structures and relocated struçtures ranged from 3 to 30 feet taller. See id. at 7-8. TheSubcommittee did not find that the addition of a new 345 kV transmission line, with structures that are 40 to 50 feethigher than existing structures, would negatively impact land use or interfere with development patterns along thecorridor. Moreover, the Subcommittee did not consider whether this could constitute a non-conforming use.

l5

27. Just as important, the mernbers of Subcommittee----once again--did not

even consider whether conditions might be imposed to mitigate their concerns. For example,

certain Subcommittee members seemed to tentatively conclude that with regard to 32 miles of

new right-of-way in the North Country there would be no land use concerns for the 24 miles on

Wagner Forest Management land, nor would there be land use concerns for the 8 miles of

underground construction in Pittsburg, Clarksville and Stewartstown. 2 AM 68-72. However,

there was no discussion of specific concerns related to the 8 miles of new overhead right-of-way

in Pittsburg, Clarksville and Stewartstown, or consideration of conditions that would address

those concems. Such conditions could have included the use of resources from the Forward NH

Fund, dedicated to specific communities and placed under their control.26 The Subcommittee

might also have considered providing funds for use by appropriate local or State authorities, for

items such as the enhancement of local tourism and recreation, as well as community services

and infrastructure, all squarely within the four focus areas of the Forward NH Fund.

B. The Subcommittee's Decision to End Deliberations WasPremature

28. The first of twelve scheduled days of deliberations began on January 30,

2018. On the morning of Day One, the Subcommittee addressed the first finding under RSA

I62-H;76,IV, namely, whether the Applicants have the financial, technical and managerial

capability to assure construction of the Project in continuing compliance with the terms and

conditions of a Certificate. The Subcommittee did not vote on the required finding. Instead, the

Chairman summarized the consensus among the members that the Applicants appeared to have

26 fh"Forward NH Fund has four broad focus areas including economic development, tourism, communitybetterment and clean energy innovation.

I6

demonstrated the required financial, technical and managerial capabilities, subject to working out

the details on certain conditions applicable to this ñnding.2j

29. On the afternoon of Day One, and continuing through the morning of

January 31,2018, the Subcommittee turned to a discussion of the second finding under RSA

162-H:l6,IV, namely, the ODR finding. At several points during those preliminary

deliberations, members of the Subcommittee discussed the possible consideration or imposition

of conditions relating to the criteria underlying the ODR finding, but never actually deliberated

over such conditions. See e.g. I PM 4317; I PM 10412l-106110;2 PM 6115;2PM3319-34/1.

30. On the morning of February 1't, the Subcommittee discussed the issue of

whether the Applicants had met their burden to show that there would be no undue interference

with ODR. 3AM312-3316. Following that discussion, Chairman Honigberg stated as follows:

And I'll note in closing on this topic that this is not a

vote......We're going to continue the discussion of all of the restof the Application and the other elements. And until a vote istaken, everything is open for discussion. But that's where we areright now.

3 AM 3212t-33t5.

31. The Chairman's statement recognized a simple point, and one compelled

by common sense, as well as by the statute: until all relevant information in the record is

considered, all criteria in the rules are applied, and all findings are deliberated (including

mitigating conditions), Subcommittee members lack the information and analyses needed to

make a fully reasoned decision. This is why, as discussed below, the statute and regulations

27 thts example illustrates how the Subcommittee should factor conditions into the context of making a finding: Inaddressing the Technical/lvlanagerial/Financial finding, the Subcommittee appeared to contemplate a favorableruling on this issue, but only with conditions it deemed suitable. Yet in voting on the ODR finding, theSubcommittee failed to consider - or even recognize - that suitable conditions could have, in fact, addressed theconçerns of Subcommittee members so as to altcr the Subcommittee's ultimate decision. This occurred despiteSubcommittee members indicating their interest in discussing conditions relative to certain aspects of ODR earlier inthe deliberations. See Section III, A for further discussion on this point.

l7

require the Subcommittee to make all the required statutory findings before deciding to grant or

deny a certificate.28

32. After beginning its deliberations on air and water quality later on the

morning of February 1, the Subcommittee broke for lunch. 3AM 33/11-7819. During the lunch

break, the Subcommittee apparently discussed procedural matters in a non-public session. 3PM

4123-514. At the opening of the afternoon session, Commissioner Bailey made a motion to end

deliberations on all issues based on the morning discussions of the ODR finding. 3P}r43ll2.

Although recognizing that "[b]y statute, we have to make findings, we have to make four

findings in order to grant the Certificate," she stated her belief that the Subcommittee could not

grant the Certificate based on the views expressed regarding the ODR finding and thus 'oitmay

be better for us just to stop now." 3P}l4 415-5123.

33. The Subcommittee voted to end deliberations by a 5-2 vote. 3P,}l423123-

2414. Both lawyers on the Subcommittee voted to continue the deliberations in order to consider

all of the required factors needed to decide whether to grant or deny the Certificate. 1d.29

34. The decision to end deliberations after just two and one-half days, and

without making all the findings, was not without controversy. Ms. Dandeneau expressed

"concern about doing diligence to the rest of the information we've had presented over the

course of 70 days of hearings." Id. 5116. Ms. Weathersby stated that "the lawyer in me says we

28 Ott" example of the interplay between required findings is found in the discussion of the effect of the Project onprevailing land uses during the morning session of deliberations on Day 2. In discussing the so-called "tippingpoint" related to the effects in existing right-of-way, various members indicated that: a) it would be different andlook different in different places (Ms. Bailey, 3AM 34); b) oowe're talking about aesthetics here, particularly as wetalk about intensification (Mr. \Vay, 3AM 44): c) "land use is for the view... I know part of that is aesthetics (Mr.Oldenburg, ¡nM 66); and, d) "I guess to me it matters what aspect of this we're talking about. If we're talkingabout potential visual or aesthetic impacts" (Mr. V/right, 3AM 68).29 fhe two attorneys on the Subcommittee, Chairman Honigberg and Ms. Weathersby, seemed to recognize thispoint, while other Subcommittee members appeared not to credit this critical legal issue. Ms. Weathersby: "I thinkit's worth considering all the different arguments on all of the different factors. I think the Committee can do a goodandthoroughjob... Idon'tknow... ifexpediencyisatallarationaleforstoppingnow... Ithinkthereissomeriskin not addressing them that we should consider. . . " 3Pll[l 7 16-7 l2l .

18

should be sure to dot all our i's and cross all our t's" and that "I think it's worth considering all of

the different arguments on all of the different factors." Id. 612l-718. Although expressing her

view that theApplication might ultimately be denied, Ms. Weathersby indicated that "my

preference would be to deny it after a full analysis of all the issues." Id. I8ll2-17. She also

opined that "I don't know what-if expediency is at all a rationale for stopping now [and] I think

that without too many more days we can be done and have addressed all the topics." Id.7lI3-17.

35. Despite these differences, one member pointed to oosome risks in

continuing the deliberations." Id. 4/15; see also Id. 8110-19.30 With respect, the stafute required

both continued deliberations and the consideration of the conditions.

36. The Subcommittee then spent almost half of the remaining discussion

regarding the termination of deliberations considering how that decision might affect an appeal

to the Supreme Court and the timing of such an appeal. Id. 9-13. Whatever the reason may have

been for the Subcommittee's decision to end deliberations, that decision was an error of law. In

the absence of fuIl and proper deliberations, the Subcommittee has no ability to make the

required findings. Furthermore, the deliberations that were conducted were done so in such a

conclusory fashion that they failed to satisfy the requirements of RSA 541-A:35. See Petítíon of

Support Enforcement Officers I and 11,147 N.H. 1, 5 (2001). The Subcommittee thus failed to

provide on the record an adequate basis upon which the Supreme Court could review the

Subcommittee's decision.

30 In the Antrimldecision, Chairman Ignatius took a different view on the same subjecl 'oWe could have stopped acouple of days ago when we got that hrst vote on aesthetics, and I thought it was important that we continue to workthrough all of the issues and hear everybody's views and see if they evolved, see if they changed. And also becausepeople have put an awful lot of time and effort and emotion into this - the Applicants and intervenors and all of theCommittee members, and I think we - I felt we owed it to everyone, ourselves included, to really hash it through."Day 3, PM, p. 73. As explained herein, the Applicants do not agree that the Subcommittee could have stopped aftervoting on aesthetics but do agree that it was the right thing to do to consider all of the findings.

T9

C. RSA Chapter 162-H and the SEC Regulations RequireApplication of All Factors Before Voting to Issue or Deny aCertificate

37. The failure of the Subcommittee to deliberate on each finding violates the

SEC's own rules, which require the Subcommittee to make all of thefindings set out in RSA

162-H:|6,IV. State law requires the SEC to adopt rules relative to "the criteria for the siting of

energy facilities, including specific criteria to be applied in determining if the requirements of

RSA 162-H:16, IV have been met by the applicant for a certificate of site and facility." RSA

162-H:10, VII (Emphasis added). In its deliberations, the Subcommittee failed to apply the

regulatory criteria the Legislature had instructed it to adopt and then follow.

38. Site 202.28 (a), titled "Issuance or Denial of Certificate" provides:

The committee or subcommittee, as applicable, shall make a

finding regarding the criteria stated in RSA 162-}J:l6,IY, and Site301.13 through 30l.ll, and issue an order pursuant to RSA 541-A:35 issuing or denying a certificate.

(Emphasis added). The rule dictates that the SEC must deliberate on each criterion so that all the

findings can be made, whether the Subcommittee is deciding to issue, or deny, a certificate.

Moreover, Site 301 . 1 7 requires that "the committee shall consider whether. . . conditions should

be included in the certificate in order to meet the objectives of RSA 162-H." (emphasis added).

39. The regulatory requirement mandating that the Subcommittee make

findings on each of the statutory criteria is consistent with RSA 162-H:16, IV (Supp. 2017),titled

"Findings and Certificate Issuance," which provides as follows:

After due consideration of all relevant information regarding thepotential siting or routes of a proposed energy facility, includingpotential significant impacts and benefits, the site evaluationcommittee shall determine if issuance of a certificate will serve theobjectives of this chapter. In order to issue a certificate, thecommittee shall find that:

(a) The applicant has adequate financial, technical, andmanagerial capability to assure construction and operation of the

20

facility in continuing compliance with the terms and conditions ofthe certificate.

(b) The site and facility will not unduly interfere with theorderly development of the region with due consideration havingbeen given to the views of municipal and regional planningcommissions and municipal governing bodies.

(c) The site and facility will not have an unreasonableadverse effect on aesthetics, historic sites, air and water quality, thenatural environment, and public health and safety.

(d) fRepealed.](e) Issuance of a certificate will serve the public interest.

(emphasis added). As is evident from the plain language of the subsection, the SEC must

consider "all relevant information" in the process of deliberation and must weigh the impacts and

benefits of the various factors.

40. "The law of this State is well settled that an administrative agency must

follow its own rules and regulations." Attitash Mt. Service Co. v. Schuck, 135 N.H. 427,429

(Igg2). An agency "must also comply with the governing statute, in both letter and spirit."

Appeal of Morín,140 N.H. 515, 519 (1995). If an administrative agency or board fails to follow

its rules, the agency has abused its discretion and an appellate court will reverse the agency's

decision. Id. at 518 ("If the board abuses its discretion-whether by making arbitrary decisions;

by failing to comply with the requirements of its governing legislation or with its own rules and

regulations; or by failing to follow fair procedures-then we 'will not hesitate to reverse' the

agency's decision.").

41. Contrary to its own regulations and authorizing statute, the Subcommittee

ended its deliberations after discussing and informally indicating that the Applicants had the

financial, technical and managerial capability, but only partially considering ODR, thus failing to

make the remaining findings. By failing to deliberate further, the Subcommittee halted the

integrated process called for by its own rules, and by the statute. Had the Subcommittee

deliberated further and had applied the criteria from the rules and considered the additional

2I

required findings, it could have imposed conditions in the Certificate that resolved its concerns

relating to ODR, and that permitted it to conclude that there was no undue interference.

42. In fact, in other proceedings, SEC members have specifically noted the

need to reach a decision after deliberating on all of the factors. For example, in the recent

deliberations regarding the Antrim Wind Energy project, SEC member Clifford, in the context of

discussing a condition that would address public health and safety as well as aesthetics, stated:

It's not a game-changer. In other words, we're voting on the entire Application, and Ithink everyone on the Committee has a right to voice their opinions and concerns as wework our way through the process. But the vote at the end of the day would be a vote onthe whole. But people may have varying opinions about different components of thisentire application. But at the end of the day, there is one vote on the entire Application.So I say carry on.

SEC Docket No. 2015-02, Deliberations Day 3, PM, p. 20 (December 12,2016)

43. By stopping its deliberations essentially at the outset, the Subcommittee

ignored the fact that in any deliberative process, people can change their minds, as Chairman

Ignatius observed in Antrim I. See footnote 30. In order to make a reasoned decision,

Subcommittee members are required by law to consider all of the factors in the statute and the

rules. For these reasons, the Subcommittee is required to vacate its decision to deny the

Application and resume deliberations.

IV. The Subcommittee Failed to Properly Deliberate With Respect to the ooUndue

Interference'n Finding

44. The Subcommittee's failure to complete its deliberations on all of the

statutory or regulatory findings was compounded by its failure to properly deliberate with respect

to one of the findings it did partially consider namely, its conclusion that the Applicants had

failed to meet their burden to show that the facility would not unduly interfere with ODR. In

22

reaching that conclusion, the Subcommittee misconstrued the standard to which the burden of

proof applied.

45. To the best of the Applicants' knowledge, the SEC has never denied an

application based on the ODR finding. Here, the Subcommittee never defined for the benefit of

individual Subcommittee members what it meant by'bndue interference," or how the "region"

should be viewed. Its failure----or inability-to do so is reflected in its deliberations.3l Indeed,

the Subcommittee failed to ascribe any meaning to the term oounduly interfere." "Unduly''

requires the Subcommittee to view the Project's alleged interference in context. In other words,

the Project does not need to show that it will not interfere with orderly development at all, but

only that its alleged interference is not undue, or extreme, or disproportionate to its scale and

scope. The Subcommittee's failure to ascribe meaning to the word affects both procedural and

substantive aspects of the Subcommittee's decision.

46. The Subcommittee's deliberations on this issue were deficient in three

respects. First, it treated the various components of the criteria to be addressed under the undue

interference finding in isolation, overlooking the fact that an impact to one or more components

does not amount to a finding of undue interference.

47. Second, the Subcommittee erred substantively because members appeared

to conclude that "unduly interfere" means to "impact" the orderly development of the region.

This position is contrary to the plain language of the statute and rules of statutory construction.

If the statute prohibited all interference with, or impact on, orderly development, the word

3l the Subcommittee never defined what constituted the "region" for the purpose of determining 'oundueinterference with the orderly development of the region." As Mr. Way noted: ool'm still interested, and I brought thisup yesterday, this idea of the 'region' everything being measured by the region. And I understand that we say"region" in the rules and in the statute. But what constitutes that region? Because the other thing, too, is you don'twant to minimize the municipalities that combined make up that region. So if we're looking at it as one whole, whyare we even getting the input of municipalities? So I think there's got to be more discussion about, are we looking atthis project in chunks, in regions? Is it the sum of its parts? I'm not clear on that yet." 2 AM 30/18-3 1/14.

23

"unduly''would be superfluous.32 The purpose section of the statute bolsters the above

argument. Indeed, the statutory scheme contemplates that projects that are granted certificates

may nonetheless interfere with ODR. State law recognizes that the selection of sites for energy

facilities will have "significant impacts on and benefits to" enumerated criteria set forth in the

statute. RSA 162-H:1. There is clearly a distinction between "unduly interfere" and mere

interference or impact from a project.

48. Third, as discussed above, the Subcommittee improperly failed to

consider conditions that might have been imposed to mitigate----or eliminate-impacts associated

with various of the underlying criteria comprising the ODR finding when considered as a whole,

and thus that might obviate the potential for undue interference. As a result of these errors, the

Subcommittee should vacate its decision to deny the Application and resume its deliberations.

The SEC Must Evaluate The Orderly Development of the Region As AWhole By Considering Relevant Information In the Application andApptying the Criteria in the Rules

Site 301.15 sets out the three criteria that the Subcommittee must consider

but must be evaluated collectively, and in connection with the component parts of the

information included with theApplication, namely, those set out in Site 301.09.33 The

Subcommittee members discussed each of the components in Site 301.09, and summarized their

views, but never explained why, when taken as a whole, that their respective, or collective, views

of each of the components amounted to undue interference.

32 Basic tenets of statutory construction require that "all of the words of a statute must be given effect and that thelegislature is presumed not to have used superfluous or redundant words." Appeal of Reid, 143 N.H. 246,252 (1998)(quotations omitted). It follows that the Subcommittee must afford all the words in the statute their meaning andmust, therefore, give the word "unduly''meaning in the context of the remaining language. "Unduly interfere" mustbe more than mere interference with, or a mere impact on, ODR.33 Chair*u.r Honigberg recognized the interaction between Site 301.15 and 301.09 in discussing the process ofreaching a decision on the ODR hnding. 3ANI415-5/5.

A.

49

in determining whether a facility unduly interferes with ODR. Those criteria do not stand alone,

24

50. The Subcommittee members appeared to believe that they were to make

individual findings with respect to each component identified in Site 301.09 (b) with the result

that if one or more of the components were negative, there was undue interference. See

discussion by Mr. Way. 3AM 819-Illl; see also the discussion in part IV. B below. But the rules

do not require or contemplate that the SEC would make individual findings with respect to each

of the components set out in Site 301.09. Rather, they require-and the SEC has historically

considered-that all of the parts be considered as part of the larger whole with respect to the

effect that afacility would have on the orderly development of the region. See e.g. Tk

Deliberations Day 1, Merrimack Valley Reliability Project, Docket No. 2015-05, p. 42. This is

in contrast to the other parts set out in RSA 762-H:16, IV(c), which mandate that the SEC make

individual findings that a facility will not have an unreasonable adverse effect on aesthetics,

historic sites, air and water quality, the natural environment, and public health and safety. The

SEC rules make this clear by providing specific criteria to be considered for each of the

subcategories identified in RSA 162-H:|6,IV (c). See Site 301.05 - 301.08.

51. The individual components in 301.09 are part of the ultimate

determination as to whether any interference is "undue." The issue is not whether there is an

impact with regard to one or more of the components but whethet as a whole, the collective

impacts on orderly development amount to "undue interference." Even if the Subcommittee

concluded that the Project would have an impact on each of the component parts that make up

the ODR finding, it could still conclude that the Project did not unduly interfere with ODR. It

appears that many Subcommittee members did not consider this critical difference. And the

Subcommittee never considered it as part of its vote.

25

52. The absence of any clear standard in the deliberations about what

constitutes undue interference, and the absence ofa rigorous process to apply the facts and

potential conditions to the analysis of that issue, resulted in the application of a regulatory

standard that is so vague as to constifute a violation of due process under both the New

Hampshire and United States Constitutions.34

B. The Subcommittee Misconstrued the Burden of ProofNecessary to Constitute a Showing of "Undue Interference'o

53. The Subcommittee ended deliberations and concluded that NPT had

"failed to prove by a preponderance of the evidence that the Site and Facility, the Project, will

not unduly interfere with the orderly development of the region." 3P}l43l12;3PM 19/11. In

reaching that conclusion, the members of the Subcommittee mistakenly conceived the o.undue

interference" standard and thus misapplied the burden of proof necessary to meet that standard.

The Subcommittee members appeared to apply a definition of the standard and of the burden of

proof as follows: unless the Applicants demonstrated that-as to each of the components in

301.09, which underlie the criteria in Site 301.1s-that there was no negative impact, or some

positive impact, the Applicants had necessarily failed to meet its larger burden of proving facts

sufficient for the Subcommittee to find that the Project will not unduly interfere with the orderly

development of the region. This is not what the statute or the rule requires.

34 A statut" or regulation is void for vagueness when it either forbids or requires "the doing of an act in terms sovague that persons of common intelligence must necessarily guess at its meaning and differ as to its application."Sheedy v. Merrimack County Superior Court,l28 N.H. 51, 54 (1986) (quoting Connally v. Generql Constr. Co.,269U.S. 385, 391 (1926)). See also MacPherson v. Vïeiner,158 N.H. 6, I I (2008) ("stating that a statute can beimpermissibly vague for either of two independent reasons: (1) "if it fails to provide people of ordinary intelligencea reasonable opporhrnity to understand what conduct it prohibits" or (2) "ifit authorizes or even encouragesarbitrary and discriminatory enforcement"). Here, the Subcommittee's discussion of the "undue interference" factorevidences that it applied a vague standard for the burden ofproofthat no applicant could understand or meet. Putdifïerently, the dividing line between what the Subcommittee believed did, or did not, constitute undue interferencewas simply left to conjecture, which renders the rules relative to the finding of "undue interference" void forvagueness.

26

54. As noted above, each of the Subcommittee members went through the

various components (although some did not evaluate all of the components) stating whether, as

to each one, they believed there was a positive, or negative impact. 3AM 6-33. The

deliberations demonstrate that the Subcommittee members did not apply an "undue interference"

standard, but rather concluded that where there was "any impact" on a particular component, that

was enough to find that theApplicants had failed to show that there would be no "undue

interference" and thus had failed in their burden of proof. Moreover, the discussions plainly

show the lack of any clear standard for how the burden of proof was to be met.35

55. While each of the Subcommittee members concluded by stating that they

did not believe that the Applicants had met their burden of proof it is clear from their discussions

that they believed that, in order to meet that burden, the Applicants had to demonstrate-for each

and every component in Site 301.09, which underlie the criteria in Site 301.ls-that there would

be no impact at all.36 For example, one Subcommittee member summarized her views on the

impact on the economy as follows:

I agree that I think that the Applicant demonstrated that it will havesome-the Project will have some positive effect on the economy.Therefore it won't unduly interfere with the orderly developmentbecause it's not going to be a negative impact on the economy.

üd.26/5-Il (Emphasis added.) In other words, in order to meet its burden of proof and to avoid a

finding that any component of a criterion would not otnduly interfere" with the orderly

development of the region, NPT was required to show either no impact, or a positive impact.

35 S""e.g.3ANl7/23-8/l;Id.8ll2;9lll;1011-9;l0ll8-24;lll24;l2ll9;l3l15;1619;l7lll;18123;1916;23/10; 24114;26/20-27 18; 27 lll; 28/17 .

36 In addition to the members' misconceptions about the application of the burden of proof, there appears to be amisunderstanding of the role of municipal views in making a finding relative to orderly development. MemberWeathersby correctly observes that municipal views, as well as ordinances and plans do not preempt SECjurisdiction but that they should be given some weight. But in application, "some weight" has effectively beenelevated to an unjustihed level of deference. Negative views and beliefs are not evidence and deferring to thoseviews and beliefs amounts to consideration that is undue.

27

This formulation is contrary to the statute and a misapplication of the criteria set out in Site

301.15, and places a burden on the Applicants that is impossible to meet.37 In addition to the

failure to consider and apply all of the statutory factors, this error of law requires the

Subcommittee to vacate its decision and resume deliberations.

V. Conclusion

56. The Applicants recognize and appreciate the efforts of the Subcommittee

throughout the many months of review of the Application and hearing. However, the Applicants

have demonstrated good reason for the Subcommittee to vacate its decision to end deliberations

prematurely and, therefore, request that the Subcommittee complete its deliberations on all the

criteria, including the consideration of the many potential conditions identified in Attachments A,

B and C. If this request is granted, that Applicants believe that, based on the substantial record

in this proceeding together with these proposed conditions, the Subcommittee should conclude

that the Applicants have met their burden of proof. Accordingly, the Applicants respectfully

request that the Subcommittee vacate its decision and resume its deliberations on all the required

statutory and regulatory considerations, including conditions of approval that may address issues

identified in the course of those deliberations.

37 N"ith"r the statute nor the regulations dehne what constitutes "undue" interference, and as noted, theSubcommittee made no attempt to provide a definition. The common, dictionary definition of o'undue" is"exceeding or violating propriety or fitness," or "as going beyond a normal or acceptable limit in degree oramount." Webster's Third International New International Dictionary, Merriam Webster 2002, at2492."lnterfere"is defined as "to come in collision: to be in opposition to: to run at cross purposes: to clash." Id. 1178.

28

WHEREFORE, tlie Applicants ræspectfully request that the SEC:

Act on this Motion for Rehearing within l0 days as roquircd by RSA

541:5 and Site ?02.29(e);

V¿cate the Decision of February 1't;

Resurne deliberations on the Application as requested herein; and

Grant such flirther relief as is just, equitabie and appropriate.

Respectfu 11 y submitted,

Nonhern Pass Transmission LLC and PubllcSerr,icc Company of Ncw Hampshirc dib/aEversource Energy

By Its Attorncys,

McLANE MIDDLETON,PRÜFESSIONAL ASSOCIATION

Dated: Fehruary 28, 2018 By:Needleman, Bar No. 9446

barry. needleman@lrncl ans.comWilbur Á.. Glahn III, Bar No. 937bill. glahn@mclans. comThomas B. Getz, B¿r No. 9?3thomas. getz@mclane. c*m11 Sauth Main Street, Suite 500Concord, NH 03301(603) 22ó-0400

Certificate of Servics

I hereby certify that on the 28th of February,2ü18, an original ând one copy of thelbregoing Motion was hand-delivered ta the New Hampshire Site Evaluation Committee and anelectronic copy \¡¿as served upon the Distribution List.

A.

ts.

C.

D.

29

1

COUNSEL FOR THE PUBLIC’S PROPOSED CONDITIONS

REVISED AND AMENDED BY AGREEMENT WITH THE APPLICANTS

FEBRUARY 28, 2018

1. Best Management Practices – Construction.

Further Ordered that, prior to any construction activity, Applicants shall file with the SEC a copy of all Best Management Practices (“BMPs”) for all construction activity; including, without limitation BMPs for entering and exiting the ROW or any construction site; sweeping paved roads at access points; BMPs relating to Applicants’ Storm Water Pollution Prevention Plan; BMPs for specific locations such as steep slopes near water bodies; BMPs for HDD/micro-tunnel drilling locations; and BMPs for work near archeological and historic sites.

2. Avoidance, Minimization and Mitigation – Natural Environment.

Further Ordered that, prior to any construction activity, Applicants shall identify and implement the following avoidance, minimization and mitigation measures (“AMMs”) in addition to or supplementing Avoidance, Minimization and Mitigation Measures and Time of Year Restrictions for Wildlife Resources and Plant Protections -- Avoidance and Minimization Measures as required by Condition 2 of the of NHDES Wetlands Bureau’s March 1, 2017 Final Decision and recommended approval of the wetlands application filed by the Applicants. The AMMs will apply except in the case where the Applicants receive a specific waiver in advance from the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau

a. Eastern Small-Footed Bats. Investigate and confirm which rocky outcrops are inhabited by eastern small-footed bats

and avoid any blasting and/or construction activities on or adjacent to any rocky outcrops inhabited by eastern small-footed bats.

b. Northern Long-Eared Bats.No tree removal activity shall be conducted in proximity to identified long-eared bat

sites, including the Bristol mine location, between August 1 and May 31, and Applicants shall perform acoustic monitoring within any area that will be cleared to verify the absence of bats prior to tree clearing activity.

c. Indiana Bat.Applicants shall establish AMMs to protect this species from construction activity.

d. Butterflies.Applicants shall limit all construction activity within the locations of the Karner Blue

Butterfly (“Kbb”) in Concord and Pembroke to the period of December 21 to March 20 (winter conditions). Timber mats shall be used.during construction activities in wild lupine habitat, and shall not be maintained in place for more than ten (10) consecutive days during the growing season unless specifically approved in advance by the New Hampshire Department of

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Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau

Applicants shall develop a restoration plan for the parcel of land in Concord to be used to offset the impacts to the Kbb and shall fund the restoration of this property.

Applicants shall develop and file with the SEC a ROW management plan for avoidance and minimization of impacts to the Kbb during operation of the Project.

e. Birds.

(1) Great Blue Heron.Prior to construction, Applicants shall perform an aerial survey to locate great blue heron

nests and shall utilize a quarter-mile buffer zone for any activity near active blue heron nests.

(2) Active Raptor Nests.Prior to construction, Applicants shall perform an aerial survey to identify active raptor

nests and follow Applicants’ proposed AMMs for active raptor nests.

(3) Common Nighthawk.Prior to construction, Applicants shall file AMMs for the common nighthawk that

describes the methodology to “predetermine” the buffer area around nests.

(4) Bald Eagles.Prior to construction, Applicants shall file AMMs that provide for nest identification by

an aerial survey.

f. Mammals.

(1) Lynx Prior to construction, Applicants shall file with the SEC AMMs that describe how

Applicants will survey sites for lynx denning sites to discover the presence of lynx, and shall not clear any trees between May 1 and July 15 in locations where Lynx are discovered.

(2) American Marten. Prior to construction, Applicants shall file with the SEC proposed AMMs to avoid or

minimize impacts to the American Marten, which shall include seasonal restrictions on construction and the prohibition of off-highway recreational vehicles in the new ROW and access roads. Applicants also shall confirm that the proposed mitigation parcels provide accessible high quality martin habitat.

g. Plants.

(1) Wild Lupine. Applicants shall limit all construction activity in the Concord and Pembroke locations

where wild lupine are present to the period of December 21 to March 20, and shall use timber

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mats, during any construction activity. Any timber mats used shall not be maintained in place for more than ten (10) consecutive days during the growing season unless specifically approved in advance by the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

(2) Licorice Goldenrod. Prior to construction, Applicants shall file with the SEC proposed AMMS for the licorice

goldenrod.

(3) The Small Whorled Pogonia. Prior to construction, Applicants shall survey the ROW and file with the SEC an

inventory of all small whorled pogonia within the ROW and shall file AMMs for this plant.

(4) Red Threeawn. Prior to construction, Applicants shall file with the SEC BMPs that include seasonal

restrictions, seed collection, the establishment of conservation areas and reseeding areas after construction.

3. Monitoring.

Further Ordered that, once construction begins, Applicants shall file weekly with the SEC a copy of all reports by all construction and environmental monitors. The SEC shall post said reports on its website. Applicants also shall identify a specific contact person from the Project, with their contact information, to whom all questions, concerns or other communications should be sent regarding monitoring reports. The Project’s contact person shall respond in writing within ten (10) days to all written communications they received regarding a monitoring report. The SEC, or any state agency to which the SEC delegates authority to, shall have continuing jurisdiction to address any violations of these conditions, all BMPs or all AMMS for the Project. Following remediation of any such violation, Applicants shall file with the SEC a report of remediation, and the SEC shall post said reports on its website.

4. Blasting.

Further Ordered that, prior to any blasting, Applicants shall identify drinking water wells located within 2,000 feet of the proposed blasting activities and develop a groundwater quality sampling program to monitor for nitrates and nitrites, either in the drinking water supply wells or in other wells that are representative of the drinking water supply wells in the area.

Further Ordered that, the groundwater quality sampling program shall include pre-blasting and post-blasting water quality monitoring to be approved by the New Hampshire Department of Environmental Services (“NHDES”) prior to commencing blasting.

Further Ordered that, the groundwater sampling program shall be implemented by Applicants once approved by the NHDES.

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Further Ordered that, the NHDES is authorized to monitor the implementation and enforcement of the groundwater quality sampling program to ensure that terms and conditions of the program and the Certificate are met, and any actions to enforce the provisions of the Certificate must be brought before the SEC.

Further Ordered that, the NHDES is authorized to specify the use of any appropriate technique, methodology, practice or procedure, as may be necessary, to effectuate conditions addressing the groundwater sampling program or to carry out the requirements of the groundwater quality sampling program.

5. Noise.

Further Ordered that, within 15 days of receiving a complaint, the Applicants shall conduct a field test to evaluate the complaint, and within 30 days of the complaint provide a report of the results to the complainant, including, if applicable, a plan to resolve the issue. Unresolved complaints shall be referred in writing to the SEC Administrator, who will resolve the dispute, including determining whether it is appropriate to retain a third-party noise expert to take field measurements in order to evaluate and validate noise complaints.

6. Timber Mats.

Further Ordered that, Applicants shall minimize the length of time timber mats are left in place and shall not maintain any timber mats on wild lupine habitat during the growing season for more than 10 consecutive days, unless specifically approved in advance by the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

7. Tamarack Tennis Camp.

Further Ordered that, Applicants shall not perform any construction activity within 1000 feet of the Tamarack Tennis Camp during the Camp’s summer session for youth instruction.

8. Municipal Construction Rules and Regulations.

Further Ordered that, Applicants shall coordinate with the municipal engineer, road agent or other authorized municipal officer for any municipality through which the Project will pass in order for Applicants to comply with existing municipal construction rules and regulations. If it is not practicable for the Applicants to comply with such municipal rules and regulations, the Applicants shall work with the municipal officials to reach an agreement. In the event a dispute arises as to the Applicants’ compliance with any rule or regulation that the Applicants are unable to resolve directly with the municipal officials, the Applicants and/or the municipality may refer the matter in writing to the SEC Administrator for resolution.

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9. Restoration of Municipal Roads.

Further Ordered that, Applicants shall coordinate with all host municipalities to restore all municipal roads that are damaged by construction of the Project to the same or better condition, subject to the review of the municipal engineer, road agent or other authorized municipal officer and approval by the SEC administrator.

10. Public Meetings.

Further Ordered that, prior to construction of the underground portion of the Project, Applicants shall hold a minimum of three (3) combined public meetings with the Boards of Selectmen for (1) Pittsburg, Clarksville, and Stewartstown; (2) Bethlehem, Sugar Hill, Franconia, and Easton; and (3) Woodstock, Thornton, Campton, Bridgewater, and Plymouth, to discuss the construction schedule in their respective towns and to coordinate the construction in order to avoid or minimize impacting local or regional events that are scheduled to be held in said towns. To the extent that any such Board(s) are unavailable to attend combined meetings, the Applicants shall hold additional separate public meetings with such Board(s).

Further Ordered that, Applicants shall provide each host town and the Administrator of the SEC with copies of Applicants’ proposed construction plans, blasting plans, schedule and other public information (Ref. RSA 91-A:5) to be made available to the public.

Further Ordered that, the construction plans, schedule and other information provided to each host town and Administrator of the SEC shall be updated at least monthly or sooner if necessary to reflect changes in the Project’s schedule or other changes during construction.

Further Ordered that, the meetings between Applicants and the Boards of Selectmen of host towns shall be attended by persons knowledgeable with Applicants’ construction plans and responsible for managing construction activities.

Further Ordered that, the public meetings between Applicants and the Boards of Selectmen of host towns required above shall be public meetings under RSA 91-A, moderated by the towns’ Board of Selectmen, except as provided by RSA 91-A:3.

Further Ordered that, Applicants shall provide to the SEC for posting on the SEC’s website information concerning complaints during construction, if any, and their resolution, except that confidential, personal or financial information (Ref. RSA 91-A:5) regarding the complaint should be redacted.

Further Ordered that, in the event of significant unanticipated changes or events during construction that may impact the public, the environment, compliance with the terms and conditions of the Certificate, public transportation or public safety, Applicants shall notify the Board of Selectmen of all affected host towns or their respective designee and Administrator of the SEC in writing as soon as possible but no later than seven (7) days after the occurrence.

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Further Ordered that, in the event of emergency conditions which may impact public safety, Applicants shall notify the host town’s appropriate officials and the Administrator of the SEC immediately.

11. Independent Claims Process.

Further Ordered that, the SEC shall appoint an attorney or retired judge (the “Claims Administrator”) who shall independently administer a claims process for all claims relating to damage to property, loss of business or loss of income caused by construction of the Project (the “Claims Process”). Counsel for the Public and Applicants shall jointly or separately file with the SEC proposed procedures for filing and deciding said claims, including criteria for eligibility, a procedure for filing claims, required proof of the damage or loss, the presentation and consideration of claims, the basis for recovery and the manner of deciding claims. Applicants shall establish a fund for the payment of claims (“Claims Fund”) which fund shall be solely administered by the Claims Administrator, who shall provide to the SEC a quarterly report of the Claims Fund, including all disbursements. The Claims Administrator shall be paid an hourly rate to be determined by the SEC, and said compensation and all expenses of the Claims Administrator shall be paid from the Claims Fund, subject to approval by the SEC. Upon issuance of a certificate, Applicants shall deposit Five Hundred Thousand ($500,000) Dollars to establish the Claims Fund, and shall deposit any additional funds necessary to pay all claims awarded by the Claims Administrator and to pay the Claims Administrator’s compensation and expenses. The Claims Administrator shall accept written claims until the three-year anniversary date of the date when the transmission line becomes operational. The Claims Administrator shall process and provide a written decision on all written claims filed with the Claims Administrator prior to said deadline. The Claims Administrator’s decision and any reconsideration thereof shall be final and non-appealable. The Claims Process is not mandatory. Any party may file a claim in any court of competent jurisdiction in lieu of filing a claim in the Claims Process. If a party files a claim in the Claims Process, that party waives the right to file the same claim in court, and the Claims Process becomes the exclusive forum for deciding all claims filed in the Claims Process. All funds remaining in the Claims Fund after the payment of all timely filed claims and the payment of the Claims Administrator’s compensation and expenses shall be returned to Applicants.

12. Cape Horn State Forest.

Further Ordered that, Applicants shall work with the Office of Attorney General to resolve an error identified in an easement held by Public Service Company of New Hampshire for a specific parcel in the Cape Horn State Forest. The Applicants shall report the status of their discussions with the Office of the Attorney General to the SEC Administrator prior to the commencement of construction of the Project, and shall submit evidence of the resolution of the easement issue to the SEC prior to construction in the Cape Horn State Forest. This condition shall not constitute a waiver of any of the Applicants’ rights to cross public waters or state lands, or other property interests.

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13. EMF Monitoring.

Further Ordered that, Applicants, in consultation with the PUC’s Safety Division, shall measure actual electro-magnetic fields associated with operation of the Project both before and after construction of the Project during peak-load, and shall file with the SEC the results of the electro-magnetic fields’ measurements.

Further Ordered that, if the results of the electro-magnetic fields measurements exceed the guidelines of the International Committee on Electromagnetic Safety (“ICES”) or the International Commission on Non-Ionizing Radiation Protection (“ICNIRP”), Applicants shall file with the SEC a mitigation plan designed to reduce the levels so that they are lower than the ICES or ICNIRP guidelines.

14. North Country Jobs Fund.

Further Ordered that, Applicants shall require as a condition of their funding commitment to the North Country Jobs Fund (the “Jobs Fund”) that the Jobs Fund employ an independent economic development professional to provide advice on the selection of grant recipients and that the Jobs Fund file annually with the SEC a summary of all disbursements, the use of all disbursements, and the results of all grants awarded by the Jobs Fund.

15. The Forward New Hampshire Fund.

Further Ordered that, Applicants shall require the following as conditions of their funding commitment to the Forward New Hampshire Fund (“FNH Fund”): (1) that the FNH Fund shall have a board of directors who have no financial affiliation (employment, vendor, etc.) with Applicants; (2) that the FNH Fund employ an independent economic development professional to establish written criteria for the application and receipt of loans or grants from the FNH Fund; and (3) that the FNH Fund file annually with the SEC and with the Director of Charitable Trust in the Office of the Attorney General a report of its activities, including a report of its expenditures, all loans or grants made by the FNH Fund and a review of how each loan or grant was used and their results in creating jobs or economic development.

16. Decommissioning.

Further Ordered that, prior to construction Eversource Energy shall execute a payment guarantee in the face amount of $100 million, in a form acceptable to Counsel for the Public and the SEC, that will unconditionally guarantee the payment of all costs of decommissioning the Project, consistent with the Decommissioning Plan prepared by GZA GeoEnvironmental, Inc. that was filed on July 22, 2016. On each tenth anniversary of said payment guarantee, NPT shall file the SEC an updated budget for the costs of decommissioning the Project, and Eversource Energy or its successor or assigns shall provide a replacement payment guarantee in the face amount of said updated budget.

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17. Coos Loop.

Further Ordered that, NPT shall complete, as part of the construction of the Project, all of the upgrades to the Coos Loop and the transmission lines that connect the Coos Loop to the New England electrical grid that are required to remove the current constraints or flowgate restrictions on the Coos Loop, including without limitation, upgrading 16 miles of the Q-195 transmission line, 1.2 miles of the Q-195 transmission line to the Moore substation, 12.1 miles of the O-154 transmission line and 0.5 miles of the O-154 transmission line to the Paris substation, 18 miles of the D-142 transmission line, as set forth in Counsel for the Public’s Exhibits 46 and 47.

Further Ordered that the Applicants shall request that ISO-NE conduct a study, fund the study, and, in the event that ISO-NE determines an upgrade is necessary to address voltage stability at the substation in Berlin or at another substation on the Coos Loop, work with generators, Staff of the Public Utilities Commission, the Office of Consumer Advocate, and Counsel for the Public to determine sources of funding for voltage stability upgrades. To the extent that other sources of funding are not available or sufficient, the Applicants will condition their funding commitment to the FNH Fund on payment by the FNH Fund of the additional costs of necessary voltage stability upgrades.

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POTENTIAL ADDITIONAL CONDITIONS FEBRUARY 28, 2018

1. Public Outreach. Further Ordered that, to ensure robust public outreach prior to and throughout construction, the Applicants shall adopt and submit to the SEC Administrator, within 30 days of issuance of a Certificate, a public outreach plan that sets forth the steps that will be taken to keep local government officials and local residents informed of each phase of project construction, in order to avoid, minimize and mitigate impacts arising from construction of the Project. Such plan shall include coordination with local emergency responders.

2. Business Outreach. Further Ordered that, to ensure robust business outreach prior to and throughout construction, the Applicants shall adopt and submit to the SEC Administrator, within 30 days of issuance of a Certificate, a business coordination plan that sets forth the steps that will be taken in order to avoid, minimize and mitigate impacts to businesses arising from construction of the Project. Such plan shall include the Independent Claims Process described at paragraph 11 of the Counsel for the Public’s proposed conditions.

3. Land Use. Further Ordered that, in order to address potential localized impacts of the Project in host communities, the Applicants shall condition their funding commitment with the FNH Fund on earmarking $25 million for economic development as follows: (i) to provide a one-time payment of $100,000 to each of the thirty-one host municipalities for the purpose of developing and implementing Master Plans for development; and (ii) to promote community betterment in host communities.

4. Municipal MOUs (land use). Further Ordered that, in order to further limit construction related impacts in host communities, the Applicants shall enter a Memorandum of Understanding with any requesting municipality based on the template included as Attachment H to the March 24, 2017 Supplemental Testimony of William J. Quinlan.

5. Plymouth HDD (business impacts, land use). Further Ordered that, in order to avoid and limit construction impacts to businesses in Plymouth, the Applicants shall work with the Department of Transportation (“DOT”) to provide for the installation of the underground segment of the transmission line in downtown Plymouth along Main Street using horizontal directional drilling (“HDD”) construction techniques.

6. Franconia HDD (business impacts, land use). Further Ordered that, in order to avoid and limit construction impacts to businesses in Franconia, the Applicants shall work with the DOT to provide for the installation of the underground segment of the

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transmission line in Franconia on Main Street and Church Street using HDD construction techniques.

7. Tourism Growth Fund. Further Ordered that, in order to mitigate potential impacts to tourism in affected areas, the Applicants shall condition their funding commitment with the FNH Fund on 1) earmarking $25 million for projects or initiatives promoting tourism and recreation in affected areas and 2) requiring the FNH Fund to consult with NH tourism leaders to identify, design and fund programs that will promote tourism and recreation in affected areas.

8. Property Value. Further Ordered that, in order to address potential property value impacts of the Project in communities where overhead construction is anticipated, the Applicants shall condition their funding commitment with the FNH Fund on earmarking $25 million to address property value impacts in these communities during the first five years following commencement of commercial operation, as follows: (i) to authorize the Independent Administrator to draw on these earmarked funds to fund the Property Value Guaranty; and (ii) to provide an offset for municipal property tax abatements attributable to Northern Pass. To the extent that the earmarked funds are not fully distributed on expiration of the five-year period, all remaining funds shall be available for distribution by the FNH Fund for the purpose of community investment in impacted municipalities.

9. Property Value Guaranty. Further Ordered that the Applicants shall expand eligibility for the Property Value Guaranty Program described in Attachment L to the March 24, 2017 Supplemental Testimony of William J. Quinlan to include any detached residence or condominium unit located within 200 feet of the Project right-of-way along the overhead segments of the route, and including all transition stations, substation expansions, and the AC-DC converter terminal.

10. Property Tax Pledge. Further Ordered that, the Applicants shall make a binding Tax Stabilization Pledge to each of the host communities substantially in the form attached as Attachment I to the March 24, 2017 Supplemental Testimony of William J. Quinlan.

11. Energy Cost Relief Fund. Further ordered that, in order to provide a benefit comparable to the proposed 2016 power purchase agreement between PSNH and HRE, the Applicants shall secure 400,000 MWh in environmental attributes annually for the first 20 years of Northern Pass’ operation at no cost to customers. The Applicants shall monetize such environmental attributes for the purpose of providing a reduction in energy costs to low income and business customers, in addition to the projected wholesale market price benefits of the Project. Such benefits may be delivered through rate credits to large commercial and industrial customers, directing funding to the Electric Assistance Program or its equivalent administered by the

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Community Action Program agencies, or other means. By way of example, assuming a $40/MWh price for renewable energy credits, such attributes have a potential value up to $300 million over a 20-year period. See Testimony of James Daly, NH PUC Docket No. DE 16-693, page 9, lines 3-13.

12. Public Interest Programs. Further Ordered, that the Applicants shall condition their funding commitment with the FNH Fund on earmarking $20 million for the purpose supporting programs that advance clean energy innovation, community betterment and economic development in the State of New Hampshire, including without limitation the Core Energy Efficiency Programs or successor programs, or as part of funds used to finance programs that are part of an Energy Efficiency Resource Standard, as provided in the Settlement Agreement dated May 20, 2016 and subsequently approved by the PUC.

13. Right-of-Way Lease Payment. Further Ordered that the Applicant, NPT, shall make annual lease payments to Applicant, PSNH, to be flowed back to customers through transmission rates, averaging $460,000 over the 40-year term, commencing upon the start of construction pursuant to the Lease and Settlement Agreement approved by the NH PUC on February 12, 2018.

14. Additional Right-of-Way Lease Benefits. Further Ordered that the Applicant, NPT, shall make annual payments totaling approximately $15 million into a fund under the direction and control of the NH PUC for programs, projects or other purposes that provide benefits to New Hampshire distribution customers, including but not limited to demand response, distributed generation (including energy storage), electric vehicles, and other non-transmission alternatives, pursuant to the conditions of the Settlement Agreement approved by the NH PUC on February 12, 2018. In addition, the Applicants shall collaborate with the New Hampshire Department of Environmental Services and Hydro Quebec to facilitate the build out of electric vehicle charging infrastructure along interstate highway corridors I-89 and I-93 in New Hampshire, including but not limited to development of appropriate rate treatment and US and Canadian compatible payment systems.

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Potential Conditions of Approval Grouped by Statutory Finding February 28, 2018

Below is a combined list of conditions for the Subcommittee’s consideration, which includes 1) those agreed to between Counsel for the Public (“CFP”) and the Applicants, based on the CFP’s brief, 2) those proposed by the Applicants as part of their brief, including those specified by DES, DOT, PUC and DHR, 3) those proposed by certain Intervenors and accepted by the Applicants in their brief, and 4) additional conditions that the SEC could require based on the existing record to address issues identified during deliberations. The conditions are grouped by the statutory finding each is primarily aimed at addressing, but some conditions of approval could be placed under two or more of the statutory criteria.

A. The applicant has adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate.

AGREED TO WITH CFP

1. Decommissioning. Further Ordered that, prior to construction Eversource Energy shall execute a payment guarantee in the face amount of $100 million, in a form acceptable to Counsel for the Public and the SEC, that will unconditionally guarantee the payment of all costs of decommissioning the Project, consistent with the Decommissioning Plan prepared by GZA GeoEnvironmental, Inc. that was filed on July 22, 2016. On each tenth anniversary of said payment guarantee, NPT shall file the SEC an updated budget for the costs of decommissioning the Project, and Eversource Energy or its successor or assigns shall provide a replacement payment guarantee in the face amount of said updated budget.

B. The site and facility will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.

AGREED TO WITH CFP

2. Municipal Coordination. Further Ordered that, Applicants shall coordinate with the municipal engineer, road agent or other authorized municipal officer for any municipality through which the Project will pass in order for Applicants to comply with existing municipal construction rules and regulations. If it is not practicable for the Applicants to comply with such municipal rules and regulations, the Applicants shall work with the municipal officials to reach an agreement. In the event a dispute arises as to the Applicants’ compliance with any rule or regulation that the Applicants are unable to resolve directly with the municipal officials, the Applicants and/or the municipality may refer the matter in writing to the SEC Administrator for resolution.

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3. Municipal Road Restoration. Further Ordered that, Applicants shall coordinate with all host municipalities to restore all municipal roads that are damaged by construction of the Project to the same or better condition, subject to the review of the municipal engineer, road agent or other authorized municipal officer and approval by the SEC administrator.

4. Public Meetings. Further Ordered that, prior to construction of the underground portion of the Project, Applicants shall hold a minimum of three (3) combined public meetings with the Boards of Selectmen for (1) Pittsburg, Clarksville, and Stewartstown; (2) Bethlehem, Sugar Hill, Franconia, and Easton; and (3) Woodstock, Thornton, Campton, Bridgewater, and Plymouth, to discuss the construction schedule in their respective towns and to coordinate the construction in order to avoid or minimize impacting local or regional events that are scheduled to be held in said towns. To the extent that any such Board(s) are unavailable to attend combined meetings, the Applicants shall hold additional separate public meetings with such Board(s).

5. Construction Plans. Further Ordered that, Applicants shall provide each host town and the Administrator of the SEC with copies of Applicants’ proposed construction plans, blasting plans, schedule and other public information (Ref. RSA 91-A:5) to be made available to the public.

6. Periodic Updates. Further Ordered that, the construction plans, schedule and other information provided to each host town and Administrator of the SEC shall be updated at least monthly or sooner if necessary to reflect changes in the Project’s schedule or other changes during construction.

7. Applicant Representatives. Further Ordered that, the meetings between Applicants and the Boards of Selectmen of host towns shall be attended by persons knowledgeable with Applicants’ construction plans and responsible for managing construction activities.

8. Public Meetings. Further Ordered that, the public meetings between Applicants and the Boards of Selectmen of host towns required above shall be public meetings under RSA 91-A, moderated by the towns’ Board of Selectmen, except as provided by RSA 91-A:3.

9. Complaint Resolution. Further Ordered that, Applicants shall provide to the SEC for posting on the SEC’s website information concerning complaints during construction, if any, and their resolution, except that confidential, personal or financial information (Ref. RSA 91-A:5) regarding the complaint should be redacted.

10. Notification of Changes. Further Ordered that, in the event of significant unanticipated changes or events during construction that may impact the public, the environment, compliance with the terms and conditions of the Certificate, public transportation or public safety, Applicants shall notify the Board of Selectmen of all

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affected host towns or their respective designee and Administrator of the SEC in writing as soon as possible but no later than seven (7) days after the occurrence.

11. Emergency Conditions. Further Ordered that, in the event of emergency conditions which may impact public safety, Applicants shall notify the host town’s appropriate officials and the Administrator of the SEC immediately.

12. Independent Claims Administrator. Further Ordered that, the SEC shall appoint an attorney or retired judge (the “Claims Administrator”) who shall independently administer a claims process for all claims relating to damage to property, loss of business or loss of income caused by construction of the Project (the “Claims Process”).

13. Claims Procedures. Further Ordered that, with respect to the Claims Process, Counsel for the Public and Applicants shall jointly or separately file with the SEC proposed procedures for filing and deciding said claims, including criteria for eligibility, a procedure for filing claims, required proof of the damage or loss, the presentation and consideration of claims, the basis for recovery and the manner of deciding claims. Applicants shall establish a fund for the payment of claims (“Claims Fund”) which fund shall be solely administered by the Claims Administrator, who shall provide to the SEC a quarterly report of the Claims Fund, including all disbursements. The Claims Administrator shall be paid an hourly rate to be determined by the SEC, and said compensation and all expenses of the Claims Administrator shall be paid from the Claims Fund, subject to approval by the SEC. Upon issuance of a certificate, Applicants shall deposit Five Hundred Thousand ($500,000) Dollars to establish the Claims Fund, and shall deposit any additional funds necessary to pay all claims awarded by the Claims Administrator and to pay the Claims Administrator’s compensation and expenses. The Claims Administrator shall accept written claims until the three-year anniversary date of the date when the transmission line becomes operational. The Claims Administrator shall process and provide a written decision on all written claims filed with the Claims Administrator prior to said deadline. The Claims Administrator’s decision and any reconsideration thereof shall be final and non-appealable. The Claims Process is not mandatory. Any party may file a claim in any court of competent jurisdiction in lieu of filing a claim in the Claims Process. If a party files a claim in the Claims Process, that party waives the right to file the same claim in court, and the Claims Process becomes the exclusive forum for deciding all claims filed in the Claims Process. All funds remaining in the Claims Fund after the payment of all timely filed claims and the payment of the Claims Administrator’s compensation and expenses shall be returned to Applicants.

14. Cape Horn. Further Ordered that, Applicants shall work with the Office of Attorney General to resolve an error identified in an easement held by Public Service Company of New Hampshire for a specific parcel in the Cape Horn State Forest. The Applicants shall report the status of their discussions with the Office of the Attorney General to the SEC Administrator prior to the commencement of construction of the

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Project, and shall submit evidence of the resolution of the easement issue to the SEC prior to construction in the Cape Horn State Forest. This condition shall not constitute a waiver of any of the Applicants’ rights to cross public waters or state lands, or other property interests.

ADDITIONAL CONDITIONS

15. Public Outreach. Further Ordered that, to ensure robust public outreach prior to and throughout construction, the Applicants shall adopt and submit to the SEC Administrator, within 30 days of issuance of a Certificate, a public outreach plan that sets forth the steps that will be taken to keep local government officials and local residents informed of each phase of project construction, in order to avoid, minimize and mitigate impacts arising from construction of the Project. Such plan shall include coordination with local emergency responders.

16. Business Outreach. Further Ordered that, to ensure robust business outreach prior to and throughout construction, the Applicants shall adopt and submit to the SEC Administrator, within 30 days of issuance of a Certificate, a business coordination plan that sets forth the steps that will be taken in order to avoid, minimize and mitigate impacts to businesses arising from construction of the Project. Such plan shall include the Independent Claims Process, described at paragraph 11 of the Counsel for the Public’s proposed conditions.

17. Land Use. Further Ordered that, in order to address potential localized impacts of the Project in host communities, the Applicants shall condition their funding commitment with the FNH Fund on earmarking $25 million for economic development as follows: (i) to provide a one-time payment of $100,000 to each of the thirty-one host municipalities for the purpose of developing and implementing Master Plans for development; and (ii) to promote community betterment in host communities.

18. Municipal MOUs (land use). Further Ordered that, in order to further limit construction related impacts in host communities, the Applicants shall enter a Memorandum of Understanding with any requesting municipality based on the template included as Attachment H to the March 24, 2017 Supplemental Testimony of William J. Quinlan

19. Plymouth HDD (business impacts, land use). Further Ordered that, in order to avoid and limit construction impacts to businesses in Plymouth, the Applicants shall work with the Department of Transportation (“DOT”) to provide for the installation of the underground segment of the transmission line in downtown Plymouth along Main Street using horizontal directional drilling (“HDD”) construction techniques.

20. Franconia HDD (business impacts, land use). Further Ordered that, in order toavoid and limit construction impacts to businesses in Franconia, the Applicants shall work with the DOT to provide for the installation of the underground segment of the

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transmission line in Franconia on Main Street and Church Street using HDD construction techniques.

21. Tourism Growth Fund. Further Ordered that, in order to mitigate potential impacts to tourism in affected areas, the Applicants shall condition their funding commitment with the FNH Fund on 1) earmarking $25 million for projects or initiatives promoting tourism and recreation in affected areas and 2) requiring the FNH Fund to consult with NH tourism leaders to identify, design and fund programs that will promote tourism and recreation in affected areas.

22. Property Value. Further Ordered that, in order to address potential property value impacts of the Project in communities where overhead construction is anticipated, the Applicants shall condition their funding commitment with the FNH Fund on earmarking $25 million to address property value impacts in these communities during the first five years following commencement of commercial operation, as follows: (i) to authorize the Independent Administrator to draw on these earmarked funds to fund the Property Value Guaranty; and (ii) to provide an offset for municipal property tax abatements attributable to Northern Pass. To the extent that the earmarked funds are not fully distributed on expiration of the five-year period, all remaining funds shall be available for distribution by the FNH Fund for the purpose of community investment in impacted municipalities.

23. Property Value Guaranty. Further Ordered that the Applicants shall expand eligibility for the Property Value Guaranty Program described in Attachment L to the March 24, 2017 Supplemental Testimony of William J. Quinlan to include any detached residence or condominium unit located within 200 feet of the Project right-of-way along the overhead segments of the route, and including all transition stations, substation expansions, and the AC-DC converter terminal.

24. Property Tax Pledge. Further Ordered that, the Applicants shall make a binding Tax Stabilization Pledge to each of the host communities substantially in the form attached as Attachment I to the March 24, 2017 Supplemental Testimony of William J. Quinlan.

C. The site and facility will not have an unreasonable adverse effect on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.

AGREED TO WITH CFP

25. Best Management Practices. Further Ordered that, prior to any construction activity, Applicants shall file with the SEC a copy of all Best Management Practices (“BMPs”) for all construction activity; including, without limitation BMPs for entering and exiting the ROW or any construction site; sweeping paved roads at

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access points; BMPs relating to Applicants’ Storm Water Pollution Prevention Plan; BMPs for specific locations such as steep slopes near water bodies; BMPs for HDD/micro-tunnel drilling locations; and BMPs for work near archeological and historic sites.

26. Avoidance, Minimization and Mitigation. Further Ordered that, prior to any construction activity, Applicants shall identify and implement the following avoidance, minimization and mitigation measures (“AMMs”) in addition to or supplementing Avoidance, Minimization and Mitigation Measures and Time of Year Restrictions for Wildlife Resources and Plant Protections -- Avoidance and Minimization Measures as required by Condition 2 of the of NHDES Wetlands Bureau’s March 1, 2017 Final Decision and recommended approval of the wetlands application filed by the Applicants. The AMMs will apply except in the case where the Applicants receive a specific waiver in advance from the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

27. Further Ordered that, prior to any construction activity, Applicants shall identify and implement the following avoidance, minimization and mitigation measures (“AMMs”) in addition to or supplementing the Avoidance, Minimization and Mitigation Measures and Time of Year Restrictions for Wildlife Resources approved by NHDES in accordance with Condition 7 of the March 1, 2017 recommended wetlands application filed by the Applicants. The AMMs will apply except in the case where the Applicants receive a specific waiver in advance from the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

a. Eastern Small-Footed Bats. Investigate and confirm which rocky outcrops are inhabited by eastern small-footed bats and avoid any blasting and/or construction activities on or adjacent to any rocky outcrops inhabited by eastern small-footed bats.

b. Northern Long-Eared Bats.No tree removal activity shall be conducted in proximity to identified long-eared bat sites, including the Bristol mine location, between August 1 and May 31, and Applicants shall perform acoustic monitoring within any area that will be cleared to verify the absence of bats prior to tree clearing activity.

c. Indiana Bat.Applicants shall establish AMMs to protect this species from construction activity.

d. Butterflies.Applicants shall limit all construction activity within the locations of the Karner Blue Butterfly (“Kbb”) in Concord and Pembroke to the period of December 21 to March 20 (winter conditions). Timber mats shall be used during construction activities in wild lupine habitat, and shall not be maintained in place for more than ten (10) consecutive days during the growing season unless specifically approved in advance by the New

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Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

Applicants shall develop a restoration plan for the parcel of land in Concord to be used to offset the impacts to the Kbb and shall fund the restoration of this property.

Applicants shall develop and file with the SEC a ROW management plan for avoidance and minimization of impacts to the Kbb during operation of the Project.

e. Birds.

(1) Great Blue Heron.Prior to construction, Applicants shall perform an aerial survey to locate great blue heron nests and shall utilize a quarter-mile buffer zone for any activity near active blue heron nests.

(2) Active Raptor Nests.Prior to construction, Applicants shall perform an aerial survey to identify active raptor nests and follow Applicants’ proposed AMMs for active raptor nests.

(3) Common Nighthawk.Prior to construction, Applicants shall file AMMs for the common nighthawk that

describes the methodology to “predetermine” the buffer area around nests.

(4) Bald Eagles.Prior to construction, Applicants shall file AMMs that provide for nest identification by an aerial survey.

f. Mammals.

(1) Lynx Prior to construction, Applicants shall file with the SEC AMMs that describe how Applicants will survey sites for lynx denning sites to discover the presence of lynx, and shall not clear any trees between May 1 and July 15 in locations where Lynx are discovered.

(2) American Marten. Prior to construction, Applicants shall file with the SEC proposed AMMs to avoid or minimize impacts to the American Marten, which shall include seasonal restrictions on construction and the prohibition of off-highway recreational vehicles in the new ROW and access roads. Applicants also shall confirm that the proposed mitigation parcels provide accessible high quality martin habitat.

g. Plants.

(1) Wild Lupine.

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Applicants shall limit all construction activity in the Concord and Pembroke locations where wild lupine are present to the period of December 21 to March 20, and shall use timber mats, during any construction activity. Any timber mats used shall not be maintained in place for more than ten (10) consecutive days during the growing season unless specifically approved in advance by the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

(2) Licorice Goldenrod. Prior to construction, Applicants shall file with the SEC proposed AMMS for the licorice goldenrod.

(3) The Small Whorled Pogonia. Prior to construction, Applicants shall survey the ROW and file with the SEC an inventory of all small whorled pogonia within the ROW and shall file AMMs for this plant.

(4) Red Threeawn. Prior to construction, Applicants shall file with the SEC BMPs that include seasonal restrictions, seed collection, the establishment of conservation areas and reseeding areas after construction.

28. Reporting. Further Ordered that, once construction begins, Applicants shall file weekly with the SEC a copy of all reports by all construction and environmental monitors. The SEC shall post said reports on its website. Applicants also shall identify a specific contact person from the Project, with their contact information, to whom all questions, concerns or other communications should be sent regarding monitoring reports. The Project’s contact person shall respond in writing within ten (10) days to all written communications they received regarding a monitoring report. The SEC, or any state agency to which the SEC delegates authority to, shall have continuing jurisdiction to address any violations of these conditions, all BMPs or all AMMS for the Project. Following remediation of any such violation, Applicants shall file with the SEC a report of remediation, and the SEC shall post said reports on its website.

29. Groundwater Sampling Program. Further Ordered that, prior to any blasting, Applicants shall identify drinking water wells located within 2,000 feet of the proposed blasting activities and develop a groundwater quality sampling program to monitor for nitrates and nitrites, either in the drinking water supply wells or in other wells that are representative of the drinking water supply wells in the area.

30. Water Quality Monitoring. Further Ordered that, the groundwater quality sampling program shall include pre-blasting and post-blasting water quality monitoring to be approved by the New Hampshire Department of Environmental Services (“NHDES”) prior to commencing blasting.

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31. Approval by NHSEC. Further Ordered that, the groundwater sampling program shall be implemented by Applicants once approved by the NHDES.

32. Monitoring and Enforcement. Further Ordered that, the NHDES is authorized to monitor the implementation and enforcement of the groundwater quality sampling program to ensure that terms and conditions of the program and the Certificate are met, and any actions to enforce the provisions of the Certificate must be brought before the SEC.

33. NHDES Authority. Further Ordered that, the NHDES is authorized to specify the use of any appropriate technique, methodology, practice or procedure, as may be necessary, to effectuate conditions addressing the groundwater sampling program or to carry out the requirements of the groundwater quality sampling program.

34. Noise Complaint Resolution. Further Ordered that, within 15 days of receiving a complaint, the Applicants shall conduct a field test to evaluate the complaint and within 30 days of the complaint provide a report of the results to the complainant, including, if applicable, a plan to resolve the issue. Unresolved complaints shall be referred in writing to the SEC Administrator, who will resolve the dispute, including determining whether it is appropriate to retain a third-party noise expert to take field measurements in order to evaluate and validate noise complaints.

35. Timber Mats. Further Ordered that, Applicants shall minimize the length of time timber mats are left in place and shall not maintain any timber mats on wild lupine habitat during the growing season for more than 10 consecutive days, unless specifically approved in advance by the New Hampshire Department of Environmental Services after consultation with the New Hampshire Fish and Game Department and the New Hampshire Natural Heritage Bureau.

36. Tamarack Tennis Camp. Further Ordered that, Applicants shall not perform any construction activity within 1,000 feet of the Tamarack Tennis Camp during the Camp’s summer session for youth instruction.

37. EMF Measurements. Further Ordered that, Applicants, in consultation with the PUC’s Safety Division, shall measure actual electro-magnetic fields associated with operation of the Project both before and after construction of the Project during peak-load, and shall file with the SEC the results of the electro-magnetic fields’ measurements.

38. EMF Mitigation Plan. Further Ordered that, if the results of the electro-magnetic fields measurements exceed the guidelines of the International Committee on Electromagnetic Safety (“ICES”) or the International Commission on Non-Ionizing Radiation Protection (“ICNIRP”), Applicants shall file with the SEC a mitigation plan designed to reduce the levels so that they are lower than the ICES or ICNIRP guidelines.

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DEPARTMENT OF ENVIRONMENTAL SERVICES

39. Further Ordered that all permits and/or certificates recommended by the New Hampshire Department of Environmental Services (DES), including the Wetlands Permit, the Alteration of Terrain Permit, and the Shoreland Permit, shall issue and this Certificate is conditioned upon compliance with all conditions of said permits and/or certificates which are appended hereto as Appendix I.

40. Further Ordered that DES is authorized to monitor the construction and operation of the Project to ensure that the terms and conditions of the Wetlands Permit, the Alteration of Terrain Permit, the Shoreland Permit, and the Certificate are met, however; any actions to enforce the provisions of the Certificate must be brought before Committee.

41. Further Ordered that DES is authorized to specify the use of any appropriate technique, methodology, practice or procedure approved by the Subcommittee within the Certificate, as may be necessary, to effectuate conditions of the Certificate, the Wetlands Permit, the Alteration of Terrain Permit, and the Shoreland Permit.

42. Further Ordered that this Certificate is conditioned upon compliance with the Section 404 General Permit (the New Hampshire Programmatic General Permit) and the 401 Water Quality Certification.

43. Further Ordered that DES is authorized to monitor the construction and operation of the Project to ensure that terms and conditions of the Section 404 Permit and the 401 Water Quality Certification are met, however, any actions to enforce the provisions of the Certificate must be brought before the Committee.

44. Further Ordered that DES is authorized to specify the use of any appropriate technique, methodology, practice or procedure approved by the Subcommittee within the Certificate, as may be necessary, to effectuate conditions of the Section 404 Permit and the 401 Water Quality Certification.

DEPARTMENT OF TRANSPORTATION

45. Further Ordered that all permits and/or approvals recommended by the New Hampshire Department of Transportation (DOT) shall issue and this Certificate is conditioned upon compliance with all conditions of said permits and/or approvals.

46. Further Ordered that DOT is authorized to monitor the construction and operation of the Project to ensure that terms and conditions of the Certificate and permits and approvals issued by DOT are met, however; any actions to enforce the provisions of the Certificate must be brought before the Committee.

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47. Further Ordered that DOT is authorized to specify the use of any appropriate technique, methodology, practice or procedure approved by the Subcommittee within the Certificate, as may be necessary, to effectuate conditions of the Certificate and permits and certificates issued by DOT.

48. Further Ordered that with respect to the underground installation in locally- maintained roads, a properly qualified consultant selected by and subject to the supervision of the SEC Administrator and paid for by the Applicants is authorized to monitor the construction of the Project in locally-maintained highways and enforce the relevant requirements of the DOT Utility Accommodation Manual to the Applicants’ request to install lines underground in the Towns of Stewartstown and Clarksville.

49. Further Ordered that with respect to the underground installation in locally-maintained roads, the SEC Administrator is authorized to monitor the Applicants’ excavations consistent with RSA 236:9 to perform shovel tests related to Phase I-B archeological surveys within locally-maintained highways in the Towns of Stewartstown and Clarksville.

50. Further Ordered that with respect to the underground installation in locally-maintained roads in the Towns of Stewartstown and Clarksville, a properly qualified consultant selected by, and subject to the supervision of the SEC Administrator, and paid for by the Applicants, is authorized to review and approve all requests relative to curb cuts, driveways, detours, etc., involving locally-maintained highways in the Towns of Stewartstown and Clarksville in the same manner that it reviews and approves comparable requests for state-maintained highways.

51. Further Ordered that with respect to the underground installation in locally-maintained roads in the Towns of Stewartstown and Clarksville, a properly qualified consultant selected by, and subject to the supervision of the SEC Administrator, and paid for by the Applicants, is authorized to review and approve traffic control measures and a traffic management plan for the underground installation in locally-maintained roads in the Towns of Stewartstown and Clarksville.

52. Further Ordered that, to the extent DOT denies Applicants’ exception requests, DOT is authorized to monitor and enforce the Applicants’ tree preservation commitment (i.e., that the Applicants agree not to cut trees greater than 6” in diameter within a Cultural or Scenic Byway) where the Project may be constructed outside the paved portion of the highway right-of-way. To the extent the Applicants seek to deviate from this condition, the Applicants must seek approval from the SEC Administrator.

53. Further Ordered that with respect to the overhead installation, the Applicants shall employ traffic controls in accordance with the 2009 edition of the Manual on Uniform Control Devices and DOT policies.

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54. Further Ordered that any future surface distortion within the trench area in locally-maintained roads, due to settlement or other causes attributable to the construction shall be corrected by the Applicants as required during construction and for a period of two (2) years following the commencement of commercial operations of the Project.

55. Further Ordered that the Applicants agree to assume such additional cost as a municipality may incur due to the maintenance, operation, renewal, or extension of the underground installation components of the Project or appurtenances thereto within the locally-maintained roads.

PUBLIC UTILITIES COMMISSION

56. Further Ordered that all licenses approved by the New Hampshire Public Utilities Commission (PUC) shall issue and this Certificate is conditioned upon compliance with all conditions of said licenses.

57. Further Ordered that PUC is authorized to monitor the construction and operation of the Project to ensure that terms and conditions of the licenses issued by PUC are met, however; any actions to enforce the provisions of the Certificate must be brought before Committee.

58. Further Ordered that PUC is authorized to specify the use of any appropriate technique, methodology, practice or procedure approved by PUC or in the Certificate, as may be necessary, to effectuate conditions of the Certificate and licenses issued by PUC.

59. Further Ordered that the Applicants will comply with the requirements of RSA 374:48 et seq., the Underground Facility Damage Prevention System administered by the PUC, when the Applicants excavate within 100 feet of an underground facility used to convey cable television, electricity, gas, sewerage, steam, telecommunications, or water.

60. Further Ordered that the PUC is authorized to monitor and enforce measures the Applicants shall take to comply with the interference assessment filed on June 30, 2017, otherwise known as the Co-Location Study, and that the Applicants shall coordinate their construction efforts with the Portland Natural Gas Transmission System.

DIVISION OF HISTORICAL RESOURCES

61. Further Ordered that, in the event that new information or evidence of historic sites, archeological sites, or other archeological resources is found within the area of potential effect of the Project, the Applicants shall immediately report said findings to New Hampshire Division of Historical Recourses (DHR).

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62. Further Ordered that to the extent changes in the construction plans of the Project affect any archeological resources, historic sites, or other cultural resources, the Applicants shall notify DHR of any such change and shall notify DHR of any new community concerns related to such change.

63. Further Ordered that consistent with the terms of the Programmatic Agreement (App. Ex. 204), DHR is authorized to specify the use of any appropriate technique, methodology, practice, or procedure associated with archaeological, historical and other cultural resources affected by the Project, however; any action to enforce the conditions must be brought before the Committee.

STANDARD

64. Further Ordered that the Site Evaluation Subcommittee’s Decision, and any conditions contained therein, are hereby made a part of this Order.

65. Further Ordered that the Applicants may site, construct, and operate the Project as outlined in the Application, as amended, subject to the terms and conditions of the Decision and this Order and Certificate.

66. Further Ordered that this Certificate is not transferable to any other person or entity without the prior written approval of the Site Evaluation Committee (Committee).

67. Further Ordered that the Applicants shall immediately notify the Committee of any change in ownership or ownership structure, or its affiliated entities, and shall seek approval of the Committee of such change.

68. Further Ordered that the Applicant shall construct the Project within five (5) years of the date of the Certificate and shall file as-built drawings of the Project with the SEC Administrator within 120 days of commercial operation of the Project.

PEMIGEWASSET RIVER LOCAL ADVISORY COMMITTEE

69. Further Ordered that the Applicants will hire four environmental monitors with appropriate credentials and will provide weekly and monthly monitoring reports to NH DES. In addition, the Project’s general contractor will have their own environmental monitors to inspect construction activities and verify that work is being conducted in accordance with applicable regulations and permit conditions. The Applicants are not required to provide additional financial support to NH DES to hire additional monitors.

70. Further Ordered that the Applicants shall restore all temporarily disturbed wetlands within the ROW to pre-existing conditions. The Applicants shall not directly impact wetlands outside of the ROW. Identification of pre-existing conditions may include inventories, flagging, and photos of wetlands prior to construction.

A. Issuance of a certificate will serve the public interest.

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AGREED TO WITH CFP

71. North Country Jobs Fund. Further Ordered that, Applicants shall require as a condition of their funding commitment to the $7.5 million North Country Jobs Fund (the “Jobs Fund”) that the Jobs Fund employ an independent economic development professional to provide advice on the selection of grant recipients and that the Jobs Fund file annually with the SEC a summary of all disbursements, the use of all disbursements, and the results of all grants awarded by the Jobs Fund.

72. Forward New Hampshire Fund. Further Ordered that, Applicants shall require the following as conditions of their funding commitment to the $200 million Forward New Hampshire Fund (“FNH Fund”): (1) that the FNH Fund shall have a board of directors who have no financial affiliation (employment, vendor, etc.) with Applicants; (2) that the FNH Fund employ an independent economic development professional to establish written criteria for the application and receipt of loans or grants from the FNH Fund; and (3) that the FNH Fund file annually with the SEC and with the Director of Charitable Trust in the Office of the Attorney General a report of its activities, including a report of its expenditures, all loans or grants made by the FNH Fund and a review of how each loan or grant was used and their results in creating jobs or economic development.

73. Coos Loop Upgrades. Further Ordered that, NPT shall complete, as part of the construction of the Project, all of the upgrades to the Coos Loop and the transmission lines that connect the Coos Loop to the New England electrical grid that are required to remove the current constraints or flowgate restrictions impacting small renewable generators on the Coos Loop, including without limitation, upgrading 16 miles of the Q-195 transmission line, 1.2 miles of the Q-195 transmission line to the Moore substation, 12.1 miles of the O-154 transmission line and 0.5 miles of the O-154 transmission line to the Paris substation, 18 miles of the D-142 transmission line, as set forth in Counsel for the Public’s Exhibits 46 and 47.

74. Coos Loop Voltage Stability Study. Further Ordered that the Applicants shall request that ISO-NE conduct a study, fund the study, and, in the event that ISO-NE determines an upgrade is necessary to address voltage stability at the substation in Berlin or at another substation on the Coos Loop, work with generators, Staff of the Public Utilities Commission, the Office of Consumer Advocate, and Counsel for the Public to determine sources of funding for voltage stability upgrades. To the extent that other sources of funding are not available or sufficient, the Applicants will condition their funding commitment to the FNH Fund on payment by the FNH Fund of the additional costs of necessary voltage stability upgrades.

ADDITIONAL CONDITIONS

75. Energy Cost Relief Benefits. Further ordered that, in order to provide a benefit comparable to the proposed 2016 power purchase agreement between PSNH and HRE, the Applicants shall secure 400,000 MWh in environmental attributes annually

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for the first 20 years of Northern Pass’ operation at no cost to customers. The Applicants shall monetize such environmental attributes for the purpose of providing a reduction in energy costs to low income and business customers, in addition to the projected wholesale market price benefits of the Project. Such benefits may be delivered through rate credits to large commercial and industrial customers, directing funding to the Electric Assistance Program or its equivalent administered by the Community Action Program agencies, or other means. By way of example, assuming a $40/MWh price for renewable energy credits, such attributes have a potential value up to $300 million over a 20-year period. See Testimony of James Daly, NH PUC Docket No. DE 16-693, page 9, lines 3-13.

76. Public Interest Programs. Further Ordered, that the Applicants shall condition their funding commitment with the FNH Fund on earmarking $20 million for the purpose supporting programs that advance clean energy innovation, community betterment and economic development in the State of New Hampshire, including without limitation the Core Energy Efficiency Programs or successor programs, or as part of funds used to finance programs that are part of an Energy Efficiency Resource Standard, as provided in the Settlement Agreement dated May 20, 2016 and subsequently approved by the PUC.

77. Right-of-Way Lease Payment. Further Ordered that the Applicant, NPT, shall make annual lease payments to Applicant, PSNH, to be flowed back to customers through transmission rates, averaging $460,000 over the 40-year term, commencing upon the start of construction pursuant to the Lease and Settlement Agreement approved by the NH PUC on February 12, 2018.

78. Additional Right-of-Way Lease Benefits. Further Ordered that the Applicant, NPT, shall make annual payments totaling approximately $15 million into a fund under the direction and control of the NH PUC for programs, projects or other purposes that provide benefits to New Hampshire distribution customers, including but not limited to demand response, distributed generation (including energy storage), electric vehicles, and other non-transmission alternatives, pursuant to the conditions of the Settlement Agreement approved by the NH PUC on February 12, 2018. In addition, the Applicants shall collaborate with the New Hampshire Department of Environmental Services and Hydro Quebec to facilitate the build out of electric vehicle charging infrastructure along interstate highway corridors I-89 and I-93 in New Hampshire, including but not limited to development of appropriate rate treatment and US and Canadian compatible payment systems.

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